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BANGOR & AROOSTOOK R.R. CO. v. BROTHERHOOD OF LOCO

May 21, 1970

Bangor and Aroostook Railroad Company et al., Plaintiffs
v.
Brotherhood of Locomotive Firemen and Enginemen, Defendant. Brotherhood of Locomotive Firemen and Enginemen Plaintiff v. Atchison, Topeka and Santa Fe Railway Company et al., Defendants


Corcoran, D. J.


The opinion of the court was delivered by: CORCORAN

I.

 This case is before the Court on motion of the Brotherhood of Locomotive Firemen and Enginemen (BLF&E) for an accounting and other appropriate relief, on the opposition thereto of the above named carriers, and on the carrier's motion for reconsideration of certain rulings included in a previous opinion of this Court issued February 4, 1970.

 II.

 In this particular proceeding the issue is whether the carriers, operating in the States of Washington and Oregon, are complying with the so-called "full crew" holding of the United States Court of Appeals as set out in Brotherhood of Railroad Trainmen v. Akron & B. B. R. Co., 128 U.S. App. D.C. 59, 385 F.2d 581 (1967), cert. denied, 390 U.S. 923, 88 S. Ct. 851, 19 L. Ed. 2d 983 (1968). We set out briefly the background against which we have to decide this case. *fn1"

 Prior to Arbitration Award 282 the manpower requirements of the railroads were governed by the National Diesel Agreement of May, 1950. That agreement in substance required that a fireman be included on every engine crew. Arbitration Award 282, promulgated by a congressionally created arbitration board, suspended the operation of the National Diesel Agreement for a period of two years. It provided the procedures whereby the nearly two hundred carriers involved could eliminate 90% of the firemen's positions during the two year period of the Award.

 On the other hand certain so-called "full crew" laws of various states, specifying the minimum crew (including firemen) required to be used under certain defined conditions, were in apparent conflict with the Arbitration Award. *fn2" At the time Arbitration Award 282 became effective, the States of Washington and Oregon had such laws on their books and those laws were not repealed until after the termination of the Award. The question then presented was whether the carriers could, after the expiration of the Award, use the Award's procedures to "blank" all but 10% of the firemen positions, a privilege which had been denied them while the "full crew" laws were on the books of the various states.

 The "full crew" issue, inter alia, came before the late Judge Alexander Holtzoff in 1966. He entered judgment in Bangor & Aroostook Railroad v. Brotherhood of Locomotive Firemen and Enginemen, 253 F. Supp. 682 (D.D.C. 1966), holding that no affirmative steps could be taken under the Award once it had terminated.

 Cross appeals were taken to the United States Court of Appeals for the District of Columbia. The Court affirmed Judge Holtzoff on the "full crew" aspects of the dispute, Brotherhood of Railroad Trainmen v. Akron & B.B.R. Co., supra, 128 U.S. App. D.C. at 88-89, 385 F.2d at 611-612, holding that in situations where a state "full crew" law had been in effect throughout the life of the Award, that full crew law blocked any modification of the National Diesel Agreement through employment of the procedures provided by the Award.

 The Court adopted the "new plateau" theory that the work rules in effect on the last day of the Award remained in effect until changed by agreement of the parties or pursuant to action taken under Section 6 of the Railway Labor Act, 45 U.S.C. §§ 151-163 (1964), as amended, 45 U.S.C. § 153 (Supp. II, 1966). The Court further held that the Award procedures did not constitute work rules and that even if the full crew laws were repealed after termination of the Award the National Diesel Agreement and its requirement of a fireman on every engine crew would continue to apply. The case was then remanded to the District Court to enter judgment in accordance with the Court of Appeals rulings; and on May 29, 1968 Judge Holtzoff reaffirmed his judgment "as modified by the opinions and judgments of the United States Court of Appeals for the District of Columbia."

 III.

 On September 16, 1968 the Brotherhood of Locomotive Firemen and Enginemen (BLF&E) filed a motion for an accounting and for other appropriate relief charging failure on the part of the carriers to comply with court orders requiring the use of firemen on certain freight runs in the States of Oregon and Washington.

 Judge Holtzoff heard oral arguments on the motion on February 11, 1969. At the conclusion of that hearing he disposed of the "full crew" issue by an oral ruling, but reserved for further argument a decision as to the effect of certain agreements which had been entered into between the BLF&E and the Northern Pacific Railway (Northern Pacific) and the Spokane, Portland and Seattle Railway Companies (SP&S) respectively. He asked the parties to submit proposed orders on the "full crew" issue in accordance with his oral rulings.

 The arguments as to the agreements mentioned above were held March 17, 1969. Again Judge Holtzoff ruled orally and again requested the parties to submit proposed orders, this later order, however, to embrace not only the contract issue, but also his earlier rulings as to the "full crew" issue.

 Following the March hearing the BLF&E and the carriers entered into protracted negotiations in an attempt to reach a new national agreement governing the use of firemen. The new orders requested by Judge Holtzoff were not submitted until September, 1969, after negotiations had broken down. Judge Holtzoff died before acting on the orders. In November the case was assigned to this Court for all purposes.

 IV.

 On December 11, 1969 the BLF&E filed a supplemental memorandum on the "full crew" issue casting doubt on this Court's power to issue an order covering the oral rulings of Judge Holtzoff without first rehearing arguments on the motion as a de novo proceeding. The BLF&E argues that Rule 63 Fed. R. Civ. P. requires such a de novo hearing under the circumstances of this case. *fn3" The BLF&E further argues that Judge Holtzoff always held a hearing on any proposed order, that such a hearing was in effect a de novo proceeding, and that such a hearing at this stage would insure a clear disposition of all aspects of the motion.

 Particularly in view of the fact that this Court did open the record for a reconsideration of certain limited issues, it does not now feel that a de novo proceeding in extenso is required by Rule 63, nor does it feel that such a hearing would contribute anything significant to that which is already in the record.

 The motions were presented to Judge Holtzoff on the basis of affidavits, briefs, and oral arguments. This Court has before it the same affidavits and briefs as well as the transcripts of the oral arguments. There were no witnesses, no testimony to be subjected to a credibility test, and no jury. There is no motion to offer additional evidence and the Court is of the opinion that if any were forthcoming it would be merely cumulative. Brennan v. Grisso, 91 U.S. App. D.C. 101, 198 F.2d 532 (1952), cited by the BLF&E, does not seem pertinent to the case at bar in that it involved a trial where the credibility of witnesses was of great import.

 A case more clearly on point is Makah Indian Tribe v. Moore, 93 F. Supp. 105 (W.D. Wash. 1950) rev'd on other grounds, 192 F.2d 224 (9th Cir. 1951) where the trial judge before his death issued an extended oral opinion and another judge entered judgment based on that opinion, without benefit of a transcript of the evidence, because the opinion "provided a clear understanding of the factual basis and legal reasons" for the deceased judge's decision. Id., at 107.

 Rule 63 states that the new judge in a case "may perform" certain duties if "conclusions of law" have been issued by the deceased judge, unless the new judge "is satisfied that he cannot perform those duties." The Court is satisfied that clearly stated conclusions of law were reached by Judge Holtzoff and that this Court can perform its duties on the basis of Judge Holtzoff's rulings.

 The intendment of Judge Holtzoff's rulings as to the "full crew" issue is amply demonstrated by these excerpts from the February 11 hearings:

 
" . . . All trains affected by the full crew laws must under the Diesel Agreement continue to operate with a fireman . . . Any fireman who was discharged erroneously under an erroneous interpretation of the law is entitled to receive what wages he may have lost and ...

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