a contrary holding would result in a reversal of much if not all that has taken place under the Award as approved by the Court of Appeals.
In line with this attempt to create a definition which is harmonious with the Congressional intent in creating the Arbitration Board, and with the Court of Appeals' guidelines, the Court leans more to the position suggested by the carriers and would accordingly define a "new run" in these terms:
First, a "new run" is a run that was not listed by the carrier and subject to veto in a particular seniority district at any time during the period of the Award. Thus "new run" has no application to extra crews and crews made up from boards or extra lists not subject to the veto procedure.
Second, a "new run" is a run which exceeds the maximum number of runs listed by the carrier and subject to veto in a particular seniority district during the period of the Award.
Thus, to create a "new run" both of the above criteria must be met.
This basic definition would appear to be consistent with the "new plateau" theory, since as to any run which had been listed at any time during the period of the Award, and had been subject to the Brotherhood's veto, a new work rule was established and that work rule continues to be effective following the termination of the Award under the "new plateau" concept.
It would follow from the foregoing that a temporary discontinuance of any run which had been listed during the period of the Award would not be sufficient to constitute it a "new run," i.e., a "new run" is not created by seasonal stoppages, by changes of crew personnel, by changes in mileage of the run, by changes in the time required, or in the salary paid to the crew. New stops on an old route which do not substantially change the route, or new starting or terminal points do not constitute a "new run." A run reinstated after an act of God such as a hurricane, a tornado, or a flood, or a disaster, or a strike, all of which would disrupt or temporarily discontinue rail service, would not constitute a new run.
It is necessary to distinguish between "new crews" or "new crew assignments" and "new runs." Changes in crew assignments arise under the seniority bidding system and the seniority rules determine the order in which an individual fireman can exercise his right to bid on an available crew assignment. They do not, however, determine when an individual fireman must be used on particular crews. The positions of crews change for any number of reasons and the circumstances giving rise to seniority bidding vary greatly among the seniority districts. The Court avoids this problem of variation by relating its definition of the "new run" to the existence or non-existence of the run during the period of the Award.
Admittedly, this definition is narrow. However, the Court feels the reality of the situation demands such a narrow interpretation. A broad definition would nullify the fundamental holding of the Court of Appeals that a new plateau of work rules was established by the Award and continues in effect until changed in accordance with the Railway Labor Act.
The Brotherhood's motion for permanent injunctive relief is granted in so far as and to the extent that the carriers, consistent with the foregoing definition, are failing to man "new runs" with firemen under the National Diesel Agreement of 1950.
The Carriers' Motion for Supplemental Relief against Brotherhood of Locomotive Firemen and Enginemen having been filed on September 178 1968; the Brotherhood of Locomotive Firemen and Enginemen having filed a Motion for Interim and Permanent Injunctive Relief to Secure Fireman Manning on New Runs on November 19, 1969; the parties having filed affidavits and memoranda of points and authorities; oral argument having been had; and the Court, after due deliberation, having issued its Opinion on January 16, 1970, which Opinion constitutes its findings of fact and conclusions of law, it is hereby
Ordered, Adjudged and Decreed:
1. For purposes of interpreting and applying the holding by the United States Court of Appeals for the District of Columbia Circuit 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," as incorporated by reference into the May 29, 1968 Judgment of this Court, the term "new run" shall be construed as follows:
(a) A "new run" is a pool or regularly assigned freight engine crew or a regularly assigned yard engine crew that was not listed by the carrier and subject to being designated or "vetoed" by the Brotherhood of Locomotive Firemen and Enginemen, pursuant to Paragraphs B(1) through B(4) of Section II of the Award, at any time during the period of the Award, when such crew is in excess of the maximum number of freight or yard crews, as the case may be, listed by the carrier and subject to veto in the particular seniority district during the period of the Award. Both of these criteria must be met in order for a crew to constitute a "new run."
(b) The temporary discontinuance and subsequent reinstatement for seasonal or other reasons of a crew that was listed and subject to being vetoed at any time during the period of the Award, changes in the personnel of such a crew, or changes in the operations of such a crew such as changes in the mileage operated, in the time of operation, in the salary or wages paid, in the stops where the route is not substantially changed, or in the starting or terminal points, would not constitute a crew as a "new run" even if such changes give rise to a right to bid under the seniority rules of the carrier.
(c) Extra crews made up from an extra board or extra list are not "new runs."
2. The carriers are hereby permanently enjoined to use a fireman (helper) on each "new run" as defined above, if the use of a fireman (helper) was required by the National Diesel Agreement or by some other agreement, rule or practice in effect immediately prior to the effective date of the Award, unless or until such requirement has been changed by agreement or otherwise in accordance with the Railway Labor Act (45 U.S.C. §§ 151 et seq.).