The opinion of the court was delivered by: CORCORAN
These consolidated cases continue the long-standing dispute between the railroads and various railroad unions as to the manpower required to be employed in the movement of freight following the termination of Arbitration Award 282 which had the effect of modifying the operation of the National Diesel Agreement of 1950.
On May 12, 1966 the late Judge Alexander Holtzoff entered judgments in these cases, Bangor & Aroostook Railroad v. Brotherhood of Locomotive Firemen, 253 F. Supp. 682 (D.D.C. 1966), and cross appeals were taken to the United States Court of Appeals for the District of Columbia. The Court of Appeals disposed of the major disputes between the carriers and the unions, affirming in part and reversing in part the judgments of Judge Holtzoff. Brotherhood of Railroad Trainmen v. Akron & B.B.R. Co., 385 F.2d 581 (D.C. Cir., 1967), cert. den., 390 U.S. 923, 88 S. Ct. 852, 19 L. Ed. 2d 983 (1968). It then remanded the case to the District Court to enter judgment in accordance with its rulings. Judge Holtzoff thereupon, on May 298 1968, reaffirmed his judgment "as modified by the opinions and judgments of the United States Court of Appeals for the District of Columbia."
"The National Diesel Agreement was not set aside by the Board. As already noted, the opening section of the Award provided that agreements in force continued in effect except as they were modified by the Award. The Award provided a procedure for modifications during the two-year life of the Award. We recognize that it may be turning back the clock to an era that two presidential boards and the Neutral Members of Board 282 have agreed is technologically outdated, but taking into account the structure of Award 282 as issued, we see no alternative to holding that any new runs created after Award 282 are subject to the National Diesel Agreement, and its requirement of a fireman on each engine crew." Brotherhood of Railroad Trainmen v. Akron & B.B.R. Co., 385 F.2d at 611.
The phrase "new run" is not known to the railroad industry as a term of art. The carriers, recognizing the ambiguity, filed a motion for supplemental relief against the Brotherhood of Locomotive Firemen and Enginemen (BLF&E). That motion asked Judge Holtzoff to clarify his amended judgment (which of necessity embraced the judgment of the Court of Appeals) as to what was meant by the term "new runs."
Judge Holtzoff, in turn, suggested that the interpretation of the phrase could be best explored in the Court of Appeals where it had originated, and he granted a stay to permit an application to the Court of Appeals. The Court of Appeals, however, ruled:
"The Court is of the view that the case does not warrant revision of its outstanding opinions or mandates, and that the interpretation and application of these opinions to the fact situations now presented should be determined by the District Court in the first instance."
The BLF&E thereupon filed a motion for interim injunction and permanent injunctive relief to compel the carriers to man certain runs with firemen under the Brotherhood's definition of "new runs." Accordingly there are now pending before this Court the BLF&E motion for injunctive relief and the carrier's motion for supplemental relief, both of which depend upon a definition of "new runs."
The Award provided that each carrier could list the pool and regularly assigned freight and yard engine crews in each seniority district on which firemen were to be eliminated and the local union chairmen could veto 10% of the crews so listed. In order not to create mass unemployment the Board protected firemen who had more than two years seniority. The details of the protective provisions are not germane to this case.
Prior litigation has dealt with the problem of what occurred, legally, when the Award expired.
The Court of Appeals, adopting the views of Judge Holtzoff,
hled that Award 282 created a "new plateau" of work rules in effect as of the date of its expiration and that this "new plateau" could be changed only by mutual agreement of the parties or by proceedings under the Railway Labor Act initiated by notices under Section 6 of that statute. 45 U.S.C. §§ 151-163 (1964), as amended, 45 U.S.C. § 153 (Supp. II, 1966).
However, notwithstanding the creation and recognition of the "new plateau" of work rules, the Court of Appeals supplemental opinion quoted above reinstates the National Diesel Agreement where "new runs" are involved, i.e., it ...