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AKRON & BARBERTON BELT R.R. CO. v. BROTHERHOOD OF

March 28, 1966

Akron & Barberton Belt Railroad Company, et al., Plaintiffs,
v.
Brotherhood of Railroad Trainmen, et al., Defendants


Holtzoff, D.J.


The opinion of the court was delivered by: HOLTZOFF

This action was brought by a large number of railroads against several organizations of railroad employees for the purpose of securing an adjudication as to reciprocal rights of the parties following the termination of the effective period of an award of a compulsory arbitration ordered by the Congress concerning two basic controversies between the employers and the employees, namely, the question whether firemen should be eliminated from diesel-powered locomotives in freight and yard service, and whether the size of train crews or "crew consist", as it is denominated in the parlance of the industry, may be reduced on various runs. The award of the Special Arbitration Board created under the authority of Congress is known as Award 282.

 Two basic issues of law involved in this case were heard and determined separately in advance of the trial. The remaining issues, involving largely the application of these prior rulings to specific situations, then came on for trial. This opinion seeks to dispose of them. The evidence was introduced at the trial in the form of a detailed stipulation of facts, consisting of about 22 pages with numerous exhibits attached thereto. Counsel are to be highly commended for their admirable cooperation and meticulous and sedulous labors in preparing the stipulation and for proceeding in this highly effective and professional manner.

 Although this action was brought originally for a permanent injunction as well as a declaratory judgment, counsel for the plaintiffs indicated, after the Court announced its earlier ruling on the two basic questions on March 3, 1966, 250 F. Supp. 691 (D.D.C. 1966) that the plaintiffs would not press for an injunction at this time, but desired a declaratory judgment. Accordingly, this action then proceeded and will be determined as an action for a declaratory judgment. We shall now take up the various problems presented and argued at the trial. The rulings about to be made must be considered in the light of the previous underlying basic opinion of March 3, 1966, which is to be deemed incorporated by reference.

 During the effective period of Award 282, which terminated so far as the defendants in this action are concerned on January 25, 1966, numerous reductions in train crews were authorized, either by agreements or by Special Boards of Adjustments created under Article III of Award 282. About 90 such awards of Special Boards are listed in the stipulation. In its opinion of March 3, 1966, this Court ruled that a new status was created as a result of those awards and that this status is to be maintained after the expiration of the effective period of Award 282 and may be changed only by agreement or by serving 30-day notices under Section 6 of the Railway Labor Act (45 U.S. Code ยง 156) and then pursuing step by step, the remedies provided by that statute. During the same period, as has been just stated, a number of agreements have been made relating to the composition and size of train crews, embodying a provision that the agreements continue in effect to the same extent as if they were awards of Special Boards of Adjustment created pursuant to Article III, or Section III as it is sometimes called, of Award 282. Accordingly, it is the opinion of the Court that the same consequences attach to these agreements as to the awards of the Special Boards. The agreements create a new status, which may not be altered except by contract or in the manner prescribed by the Railway Labor Act, as has just been stated.

 This ruling obviously likewise applies to similar agreements which include a provision that they shall continue in effect until changed in accordance with the provisions of the Railway Labor Act. This conclusion also governs those agreements that provide that they shall continue in effect until January 25, 1966 and thereafter. Some of the agreements are silent on the question as to how long they should continue in force. The same consequences attach to them. In other words, they also create a new status that may not be modified after the expiration of Award 282 except by further agreement or by invoking the remedies provided by the Railway Labor Act, as already indicated.

 There are numerous agreements referring to Award 282, which are expressly made dependent, in one way or another, in their duration, on the effective period of the basic award. Irrespective of the precise phraseology employed in each instance, they must be deemed to have been executed in the light and in contemplation of Award 282 and as having the same effect as awards of Special Boards of Adjustment created under that award. It follows, hence, that the same consequences attach to them as to the agreements already discussed.

 This conclusion extends to agreements containing such provisions as that the agreement "shall remain in effect until January 25, 1966, as provided by Section IV, Duration of Arbitration Award No. 282"; or "shall remain in effect only for the duration of award of Arbitration Board 282"; or that "neither party shall serve notices under the provisions of Arbitration Award No. 282 for any change in crew consists prior to January 25, 1966"; or "an agreement in accordance with the terms of the award of Arbitration Board 282"; or that "this agreement shall remain in effect until January 25, 1966, with the understanding that neither party shall serve notices under the provisions of Arbitration Award No. 282 for any change in crew consists prior to January 25, 1966"; or "that this agreement will continue in effect in accordance with Section IV, Duration of Award of Arbitration Board 282". It is clear that all of these agreements were adjusted to the duration of the effective period of Award 282. The reasonable construction of these agreements, in the opinion of the Court, is that they have the same effect as awards of the Special Boards of Adjustment created under Award 282, and that the same consequences attach, namely, that a new status is created, which cannot be changed except in the manner already discussed.

 It will be recalled that in practically every case the original controversy had its inception in notices served by carriers and counter-notices served by organizations of employees. There are a few cases, however, in which notices were served only by organizations of employees. The Court is of the opinion that they too come within the purview of Award 282 and therefore the present ruling applies to them.

 In Division 700, Brotherhood of Locomotive Engineers v. National Railway Labor Arbitration Board 282, 224 F. Supp. 366, this Court held that a carrier was not affected by Award 282 if neither the carrier nor any of the organizations of employees served any notices under the Railway Labor Act in respect to employees of that carrier. This Court in the course of its opinion made the following observations (p. 368):

 
"What is obviously meant by the statute [referring to the statute creating Board 282] is that the notices of November 2, 1959 [meaning the carriers' notices] or the notices of September 7, 1960 [meaning the employees' notices] should have been outstanding throughout the period of mediation in order that the compulsory arbitration proceeding should attach to the specific parties."

 It will be observed that the Court remarked that in order that Award 282 might be applicable, it was necessary that either one of the two groups of notices should have been outstanding and not that both were required. To be sure, this observation is a dictum, but it expresses the view of this Court, and the Court now rules, that Award 282 applies in the case of any carrier as to which either one of the two sets of notices were outstanding.

 The Southern Railway System is in a peculiar position. Its component units were not parties to the proceedings before Arbitration Board 282 and as a result would not have been bound by its award. They entered into an agreement, however, with the Brotherhood of Railroad Trainmen on July 26, 1965, reducing the size of various yard crews on numerous branch lines. This agreement provided in Paragraph 5 that:

 
"This agreement shall become effective July 26, 1965 and shall continue in effect until January 25, 1966 and thereafter, to the same extent as if it were an award of a Special Board of Adjustment rendered in pursuance of Section III, Consist of ...

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