road a few miles in length, located entirely within the city of Des Moines, Iowa, and rendering solely freight service. It operates with a small number of crews. Consequently the range of discussion necessarily was narrow. Conferences were held on June 30, and again on August 11. National handling was requested by the carrier, but refused by the Union. The representative of the Union argued that a crew of one conductor or foreman and two brakemen or helpers would be more economical and productive, even from the standpoint of the railroad, than a crew of two men, which was the desire of the carrier. There was a thorough discussion. Neither side receded from its position and there was no agreement. In the light of the circumstances, the Court is unable to find that a genuine negotiation was lacking and, therefore, concludes that there was compliance with the pertinent provisions of the Railway Labor Act.
It was argued by counsel for the carriers, however, that in order that a negotiation may be deemed genuine as complying with the statutory requirements, a party's proposals must be reasonable. He contended that it must be within a debatable range and not so extreme as necessarily to preclude favorable consideration. He urged that the proposal of the Union would have actually wiped out everything that had been accomplished under Award 282, and would have brought conditions back to August 1963, when Congress ordered a compulsory arbitration. Counsel argued that the carrier could not be expected to give a sympathetic hearing to such an extreme demand.
The Court is unable to accept this view. In negotiations generally, parties at times, as a matter of tactics, start from an immoderate position. Genuineness of negotiations does not necessarily depend upon the nature or reasonableness of the initial proposal. In fact, in this instance the carriers' original proposal was equally untenable. Moreover, the reasonableness of a proposal contained in a Section 6 notice, should not be subject to judicial review. Cases relating to the question whether specific topics are within the realm of collective bargaining are distinguishable in principle.
A much more complicated problem arises in connection with the carriers' contention that they were entitled to negotiate on a national basis, as a multi-employer unit, and that each individual carrier could not be required to negotiate with the Union separately. A brief summary of the two national organizations is necessary in this connection. All Class I railroads in this country as a group have established a central organization, known as the National Railway Labor Conference, having its headquarters in Chicago. James E. Wolfe is the President of the Conference and is aided by an Assistant and a number of vice presidents. The Conference represents railroads in labor matters and specifically in negotiations with various Unions of railroad employees. From time to time, individual carriers give a power of attorney to the Conference to represent them. While negotiations on individual railroads may be conducted by company officials, a vice president of the Conference generally participates, if and when the proceedings reach the mediation stage.
The defendant Brotherhood of Railroad Trainmen, as its name indicates, is composed of trainmen employed by various railroads. It is likewise a national organization, with its headquarters in Cleveland. Its President is Charles Luna, who is aided by an assistant and vice presidents assigned to various regions. An official of the Union, known as a General Chairman, is attached to every railroad or group of railroads. In turn, he is assisted by local committees. Conferences involving a single railroad are ordinarily conducted either by a local committee, or by the General Chairman assigned to the carrier. If and when the matter reaches the mediation stage, a vice president of the Union is designated by the President to assist the General Chairman and in effect to take charge of the proceedings.
For many years it has been the practice in the railroad industry to handle on a national basis the adjustment of labor disputes that affect more than a single carrier. The railroads became a multi-employer bargaining unit. The National Railway Labor Conference acts as its representative. Among the numerous topics that have been treated in this manner are wage disputes, health and welfare matters, Union shop, vacations, supplemental annuities, conditions of employment and other similar subjects. Only within the past few months the defendant Union, through its President, Charles Luna, negotiated a wage agreement with numerous railroads on a national basis, James E. Wolfe acting as their representative. The result was a substantial raise in trainmen's wages.
Whenever a series of identical notices is served on a number of carriers, at about the same time, the subject matter is peculiarly fitting for what is called in the industry "national handling" and becomes a "national issue". The National Mediation Board has on a number of occasions urged negotiations and adjustments on a national basis in such cases. It has discouraged attempts to negotiate such matters individually with each railroad concerned.
The present controversy is a continuation of the dispute commenced by the service of notices in 1959 and 1960. It was conducted on a nation-wide basis, until the new notices were served in 1965. Then the Union retreated from any attempt to resume and continue negotiations on a national scale. It began to insist on treating with each railroad, separately. This new phase appears to be an unusual instance in which national handling has been resisted in a case of notices making the same demand on a number of carriers served at about the same time.
Actually the current stage of the dispute has been handled nationally on both sides, except that the Union declined to face the carriers as a group. In June 1965 Mr. Luna, the President of the Union, sent a circular letter to all local General Chairmen of his organization instructing them to serve Section 6 notices prior to July 7, 1965, making a uniform demand for the adoption of a requirement that every train and yard crew consist of a minimum of three persons, one conductor or foreman and two brakemen or helpers. A draft of the proposed notice was attached to the circular letter for use by the General Chairman. About eighty notices on as many railroads, identical in form, were served within three weeks after Mr. Luna's letter was sent out.
When the carriers started to receive these notices, Mr. Wolfe, in turn, sent a circular letter to the railroads proposing a uniform reply and enclosing a draft. He also caused about 100 carriers to send uniform notices to the Union, making identical counter-proposals. The General Chairmen of the Union transmitted to Mr. Luna the replies that came from the carriers, and were instructed by him how to proceed further. In each instance he warned them to decline any request for national handling of the dispute. The degree of control at the national headquarters of the Union is illustrated by the fact that one General Chairman suggested that it might be well to accept what he called a "short crew", and demand additional compensation instead. Mr. Luna promptly replied politely but firmly, that this course would be contrary to Union policy, because the Union wanted to insist on the larger size crew. The suggestion was immediately dropped by the General Chairman who originated it.
The evidence shows that Mr. Luna's purpose in avoiding negotiations on a national basis in this instance and preferring to deal with each railroad separately, was to escape from being eventually relegated to a position where he would have a choice of calling either a nationwide strike, or no strike at all. He realistically realized as a result of his experience in 1963 that Congress would not tolerate such a national emergency, but thought that Congress might not interfere with separate strikes on individual railroads at different times. His plan was to isolate every railroad and call separate strikes, one at a time, in order to achieve his ultimate objective, step by step.
Mr. Luna agreed that many subjects were susceptible of national handling. In fact, as has been indicated, within the past few months he, himself, negotiated a wage agreement with the railroads on a national basis. At the trial it was argued by the Union, however, that the size of crews is peculiarly a local matter, because it depends in large part on conditions prevailing on various railroads in different parts of the country. At first blush this argument seems plausible on its surface. It is contradicted, however, by the very actions of the Union. The fact that the Union served identical notices on about eighty railroads within a period of less than three weeks, proposing a general rule regulating the size and composition of crews, clearly demonstrates that the Union regarded this subject as appropriate for uniform regulation and, therefore, suitable for negotiations on a national basis.
It is clear that each of the two rival commanders-in-chief, Mr. Wolfe for the carriers and Mr. Luna for the Union, in a far-sighted manner planned a series of strategic moves. Each organized a united front. One desired to use his forces to face his adversary as a unit. The other planned to pursue the policy of divide and conquer. He did not want to confront his opponent's united front. At this point the law and the public interest step in.
The evidence establishes the fact that as a matter of custom and practice the railroads have for many years acted jointly in labor disputes as a multi-employer unit represented by the National Railway Labor Conference whenever the controversy involved a number of carriers. The Railway Labor Act by its express provisions authorizes carriers to act jointly as a group in negotiating matters initiated by notices under Section 6. Thus, it is provided in Section 1, which contains definitions, paragraph Sixth, 45 U.S.C. § 151, as follows:
"Sixth. The term 'representative' means any person or persons, labor union, organization, or corporation designated either by a carrier or group of carriers or by its or their employees, to act for it or them."
The conclusion follows that a group of carriers may designate a single representative. It seems significant that the original 1926 Act, 44 Stat. 577, did not include any definition of the word "representative", but that this paragraph was inserted by an amendment in the 1934 Act, 48 Stat. 1185, which revamped the original statute. Section 2 of the Act, 45 U.S.C. § 152 contains the following provision:
"Second. All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute."
The Act should, therefore, be construed as authorizing and empowering carriers to bargain and negotiate as a group in any labor dispute cognizable under the Railway Labor Act. This consideration is alone sufficient to sustain the position of the carriers, that in failing to meet and confer with them through a representative of the entire group the Union has failed to comply with the first requirement of the Railway Labor Act, namely, to confer and conduct a genuine negotiation.
The existence of multi-employer bargaining units and their right to insist on negotiating as a group, has been recognized and sanctioned by judicial decisions. In National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 1 L. Ed. 2d 676, 77 S. Ct. 643, eight employers in the linen supply business in and around Buffalo, New York, comprised the membership of the Linen and Credit Exchange. For approximately 13 years the Exchange had bargained with the Truck Drivers on a multi-employer basis and negotiated collective bargaining agreements signed both by the eight employers and by the Union. In the course of negotiations for a new contract, the Union called a strike at the plant of one of the employers. The remaining seven members laid off their employees, advising the Union that these drivers would be reinstated if the Union ended the strike. Shortly thereafter a new agreement was reached, the strike was terminated, and all the drivers were recalled to duty. The Union filed charges with the National Labor Relations Board that the lock-out had constituted an unfair labor practice. The Supreme Court sustained the integrity of the multi-employer bargaining unit and the right of the employers to insist on negotiating on a group basis. It was held that as a defensive and retaliatory measure the employers who were not affected by the strike had a right to have recourse to a temporary lock-out. Mr. Justice Brennan in the course of his opinion, made the following observation (p. 95):
" . . . in many industries the multi-employer bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining."
In a later decision, National Labor Relations Board v. Brown, 380 U.S. 278, 85 S. Ct. 980, 13 L. Ed. 2d 839, the Supreme Court went even further. Five operators of retail food stores in Carlsbad, New Mexico, composed a multi-employer bargaining group and had negotiated and contracted successfully on a group basis with the Local Retail Clerks Union for many years. In the course of negotiations for a new agreement the Union called a strike against one of the employers. The remaining employers continued to carry on their business, but locked out all their employees who were represented by the Union, and in the meantime operated with other members of the staff and some temporary employees. The strike continued for over a month. When an agreement was reached, both the strikers and the employees who had been locked out were restored to their jobs. The Supreme Court sustained the right of the employers to negotiate as a group, and as a corollary upheld their privilege to use a lock-out as a defensive measure in case of a strike against one member of the multiple unit. A strike of this nature has become known in the field of labor relations as a "whipsaw" strike.
The principle emerges from these two decisions that a group of employers has the right to insist on negotiating labor disputes as a multi-employer bargaining unit and its members may refuse to negotiate singly. While the Supreme Court sanctioned the use of a lock-out as a defensive weapon against a violation of this right, there is no intimation that this constitutes the exclusive remedy available to the employers. Manifestly, a lock-out cannot be invoked by a railroad or other public utility, for it must continue operating and must have competent employees for that purpose. Carriers may resort to other measures to vindicate their right to negotiate as a unit. The Supreme Court in Virginian Ry. Co. v. System Federation, 300 U.S. 515, 81 L. Ed. 789, 57 S. Ct. 592, held that the duty to negotiate in accordance with the requirements of the Railway Labor Act may be enforced by judicial decree. The conclusion is inescapable that the right of employers to negotiate as a group may be compelled in that manner.
Various Courts of Appeals have had occasion to apply these principles. They have enforced this duty reciprocally against individual employers. Thus, in National Labor Relations Board v. Sheridan Creations, Inc., (2d Cir.) 357 F.2d 245, an employers' association was organized to negotiate in behalf of its members as a unit in labor disputes of general interest, leaving to the individual employers the task of negotiating on matters affecting them separately. A member of the employers' association sought to withdraw after negotiations for a new contract were started, and refused to be bound by the agreement negotiated by his organization. The Court held that an employer was not entitled to withdraw after the negotiations started and was obligated by the contract concluded in behalf of the group.
In Universal Insulation Corp. v. NLRB (6th Cir.) 361 F.2d 406, it was likewise held that an employer member of a collective bargaining association was bound by the contract made by the organization and was not entitled to withdraw after negotiations for a new agreement had started.
Publishers' Association of New York City v. NLRB (2d Cir.) 364 F.2d 293, is cited as an authority to the contrary. In that case the Union had timely withdrawn from multi-employer bargaining unit negotiations. The National Labor Relations Board sustained the action of the Union, and its decision was affirmed by the Court of Appeals. The Court intimated, however, that the employers had the weapon of a lock-out for their protection. Such a weapon does not in fact exist in connection with the railroads and other public utilities, and, therefore, this decision is neither controlling or persuasive.
While it is true that the decisions that have been just discussed were rendered under the National Labor Relations Act, instead of under the Railway Labor Act, the difference is one in fact, and there is no distinction in principle, since the obligation to negotiate in a genuine manner exists under both statutes. This question has not been litigated to any extent under the Railway Labor Act, because it has not arisen. There is, however, a decision where the question was discussed in connection with that statute, in which Judge Ryan of the Southern District of New York wrote the opinion, Kennedy v. Long Island Railroad Co., 211 F. Supp. 478, 488, affirmed 319 F.2d 366, cert. den. 375 U.S. 830, 11 L. Ed. 2d 61, 84 S. Ct. 75. He made the following comments on this point:
"Multicarrier bargaining of labor demands, referred to as regional and national handling, has been and is (since the Act) the customary method of collective bargaining."
In the light of the foregoing discussion, the Court finds that the carriers had an established multi-employer bargaining unit for negotiating labor disputes affecting more than one carrier. The Court concludes that the plaintiffs had a right to insist on negotiating in that manner and that negotiations not so conducted did not comply with the requirements of the Act. The right to negotiate as a multi-employer bargaining unit may be enforced and compelled by judicial decree. It follows hence that the defendant has not exhausted its remedies under the Railway Labor Act and it would therefore be a violation of law for the defendant to call a strike on any of the plaintiff railroads in the present posture of the controversy.
Insofar as the Norris-LaGuardia Act is concerned, which counsel for the Union cite, it has been held on numerous occasions that where the Railway Labor Act conflicts with the Norris-LaGuardia Act, the former prevails. Virginian Ry. Co. v. System Federation, 300 U.S. 515, 562-3, 81 L. Ed. 789, 57 S. Ct. 592; Brotherhood of Railway Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 1 L. Ed. 2d 622, 77 S. Ct. 635; Brotherhood of Locomotive Engineers v. Louisville & N.R. Co., 373 U.S. 33, 83 S. Ct. 1059, 10 L. Ed. 2d 172; Manning v. American Airlines, Inc. (2d Cir.) 329 F.2d 32, 34; Akron & Barberton Belt R. Co. v. Brotherhood of Railway Trainmen, 250 F. Supp. 691. The Norris-LaGuardia Act does not apply if the remedies under the Railway Labor Act have not been exhausted.
Accordingly, the Court will render judgment directing the defendant to negotiate with the plaintiffs on a multi-employer unit basis and enjoining the calling of a strike on any of the plaintiff railroads until and unless such negotiations are properly held and concluded and all the other remedies provided by the Railway Labor Act are also exhausted.
This opinion will constitute findings of fact and conclusions of law. Counsel may submit a proposed judgment.