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January 16, 1967

Atlantic Coast Line Railroad Company et al., Plaintiffs,
Brotherhood Of Railroad Trainmen, Defendants.

Holtzoff, District Judge.

The opinion of the court was delivered by: HOLTZOFF

This is the trial of an action brought by three railroad companies, - Atlantic Coast Line Railroad Company, Boston and Maine Corporation, and Des Moines Union Railway Company -, against the Brotherhood of Railroad Trainmen, a union composed of railroad employees, for an injunction restraining the defendant from calling a strike because of a dispute over the size and composition of train and yard crews.

 The gravamen of the action is the contention that the defendant has not exhausted its remedies under the Railway Labor Act, and that a strike prior to completed recourse to them is illegal. The Union seeks the adoption of a uniform rule on all railroads providing that every train and yard crew shall consist of a minimum of three persons: a conductor and two brakemen in the case of trains, and a foreman and two helpers in the case of yards. On the other hand, the railroads maintain that in many instances a smaller crew is sufficient to do the necessary work without endangering safety. In the parlance of the railroad industry, the composition of crews is colloquially known as "crew consist".

 As the controversy presented to the Court is founded on the construction and application of the Railway Labor Act, it is desirable at the outset to analyze and summarize the statutory scheme. The Railway Labor Act (Act of May 20, 1926, 44 Stat. 577, as amended by the Act of June 21, 1934, 48 Stat. 1186; 45 U.S.C. §§ 151-163) established a system for the amicable adjustment of labor disputes in the railroad industry. It contains a well-conceived, carefully planned, elaborate system for the settlement of differences between carriers and their employees by means of negotiation, mediation, and arbitration. It provides in detail certain specified steps to be successively pursued in chronological order when such a controversy arises. Neither employers nor employees may unilaterally make or insist on any changes in agreements affecting rates of pay, rules, or working conditions, without first resorting to the remedies provided by the Act. Chief Justice Hughes stated that the major purpose of Congress in passing the Railway Labor Act was to provide a machinery to prevent strikes, Texas & N.O.R. Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 565, 50 S. Ct. 427, 74 L. Ed. 1034.

 It is emphatically announced in the statute that "It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, . . . in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof." Sec. 2, 45 U.S.C. § 152, par. "First". The provision immediately following prescribes that, "All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conferences between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute."

 It is expressly provided that no carrier shall change the rates of pay, rules, or working conditions of its employees as a class, as embodied in agreements, except in the manner prescribed in the agreements, or in Section 6 of the Act, 45 U.S.C. § 156. It is then directed that the initial step to be taken either by a carrier or by an organization of employees in the event that either desires an alteration in existing arrangements, is to serve a thirty days' written notice of intention to achieve the change, Sec. 6, 45 U.S.C. § 156. Such notices have come to be known in the industry as "Section 6 notices". A time and place for the beginning of conferences between the representatives of the parties, are then to be agreed upon within ten days after the receipt of the notice. The date of the first conference must be within the thirty-day period named in the notice.

 At the expiration of the thirty-day period following the termination of mediation or the submission of the report of the Emergency Board, as the case may be, if the dispute still remains unresolved, either party may act unilaterally and resort to self-help. Specifically, the carrier may proceed to make desired changes in rates of pay, rules, or working conditions and discharge employees whom it deems unnecessary. On the other hand, the employees' organization may call a strike, Brotherhood of Locomotive Engineers v. Baltimore & O. R. Co., 372 U.S. 284, 9 L. Ed. 2d 759, 83 S. Ct. 691. Conversely, neither party may resort to self-help until all of the remedies provided by the Railway Labor Act have been exhausted, and the thirty-day period has elapsed. *fn1"

 The present controversy had its inception on November 2, 1959. At that time carriers comprising almost all Class I railroads in the United States, approximately 200 in number, served notices under Section 6 of the Railway Labor Act, proposing uniform changes in various work and compensation rules. The proposal had two principal aspects. The first was an elimination of firemen on Diesel engines in freight and yard service. The second was an abrogation of all regulations concerning size and composition of train and yard crews. On September 7, 1960, counter notices were served by the various employees' organizations, including the defendant Brotherhood. The Unions by a subsequent clarification proposed the adoption of a uniform rule requiring not less than one conductor and two brakemen, or one foreman and two helpers on all train and yard crews.

 Resort was had successively to the various remedies accorded by the Railway Labor Act, including an Emergency Board specially appointed by the President. All efforts at an amicable settlement, however, proved unavailing. A nationwide strike was imminent, which would have created a national disaster. Congress promptly passed a Joint Resolution, which was approved by the President on August 28, 1963, Public Law 88-108, 77 Stat. 132. *fn2" It directed a compulsory binding arbitration of the dispute by a special arbitration board, to consist in part of members to be designated by each of the contending groups, and in part of members to be selected by the President. Strikes and lockouts over the dispute were forbidden during the effective term of the statute. The Joint Resolution was to expire 180 days after the date of its enactment, except that it was to remain in effect for the period of the Award with respect to any award that might be made by the Arbitration Board. The time during which the award should continue in force was to be fixed by the Board, but was not to exceed two years from the date when it took effect.

 In due course the special board, known as Arbitration Board 282, filed its Award, which became effective on January 25, 1964. It prescribed that the Award should remain in effect for two years, i.e., until January 25, 1966. This decision disposed of the issue relating to the employment of firemen on Diesel engines in freight and yard service. That aspect of the matter is not involved in the present litigation and, therefore, will not be discussed in this opinion. The Award also determined the "crew consist" issue in the following manner. A series of standards or criteria denominated as "guidelines", were formulated. They were to be followed in determining the size and composition of individual train and yard crews. No changes were to be made in any rule or practice requiring a stipulated number of trainmen, brakemen, or helpers, except by agreement. Any party, however, was permitted to give written notice of any desired alteration. If the matter was not then adjusted in conference and no agreement was reached, the subject was to be referred to a special board of adjustment, whose decision was to be binding. It was provided, however, that all trainmen, brakemen and helpers, other than those on furlough when Award 282 became effective, were to retain their employment until they retired, were discharged for cause, resigned or died. These men became known as "protected employees". In other words, any reduction of the size of crews authorized by the special boards of adjustment would not become effective except by attrition in the ranks of employees. In an action brought by organizations of employees to impeach the Award, the decision of Board was confirmed. Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q.R. Co., 225 F. Supp. 11, aff'd, 118 U.S. App. D.C. 100, 331 F.2d 1020, cert. den. 377 U.S. 918, 84 S. Ct. 1181, 12 L. Ed. 2d 187.

 Numerous special boards were eventually created on various railroad lines pursuant to Award 282, and a great many decisions changing the size of specific crews were rendered. Some of these local boards were still in operation at the termination of the effective period of the award, namely, January 25, 1966. This Court held that the local boards had no power to act subsequently to that date, Akron & Barberton Belt R. Co. v. Brotherhood of Railroad Trainmen, 252 F. Supp. 207, 210-211.

 The original controversy that arose in 1959 was resumed by the service of notices by the defendant Brotherhood on about eighty railroads between June 18 and July 7, 1965. The notices uniformly proposed minimum crews of one conductor or foreman and two trainmen or helpers, precisely as had been done in the notices served in 1960. The carriers responded on December 24, 1965 by serving notices parallel to those they had served in 1959, proposing a rule leaving the size of crews entirely within the discretion of the management. Attempted conferences proved abortive, because the carriers took the position that the notices were premature while Award 282 was in effect and, therefore, could not be served prior to January 25, 1966. This position was upheld by this Court especially in view of the fact that local boards created under Award 282 were then operating on many railroads and were dealing with the same question. Nevertheless this Court also ruled that the notices actually served need not be served again after January 25, 1966, but would be deemed effective as of that date. Akron & Barberton Belt R. Co. v. Brotherhood of Railroad Trainmen, 250 F. Supp. 691, 697.

 In each instance after being notified of the outcome by its local representative, the President of the Union, Charles Luna, requested the services of the National Mediation Board. The Board granted the applications. Accordingly separate mediation sessions were held in respect to each of the three roads under the guidance of a mediator designated by the Board. These proceedings likewise proved unavailing. The Mediation Board, in accordance with the requirements of the Act, in each instance then proffered arbitration. The railroads consented, but the Brotherhood declined to submit the matter to arbitration. The Board then formally notified the contending parties, again in accordance with the statutory provisions, that it was terminating its services. This action started the thirty-day period, at the end of which the parties would be free to resort to self-help. In other words the Union would be at liberty to call a strike. While this result could have been prevented, for the time being at least, if the Mediation Board, again in ...

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