Danaher, Senior Circuit Judge, Leventhal and Robb, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Firemen & Enginemen, Appellant 1971.CDC.52
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
In these consolidated cases the on-going strife between the railroads and the Brotherhood of Locomotive Firemen and Enginemen , concerning the fireman manpower required to be employed in the movement of freight, has come to focus on the application of our 1967 Akron opinion "that any new runs created after Award 282 are subject to the National Diesel Agreement [of 1950], and its requirement of a fireman on each engine crew." Brotherhood of Railroad Trainmen v. Akron & B.B.R.R., 128 U.S. App. D.C. 59, 89, 385 F.2d 581, 611 (1967), cert. denied, 390 U.S. 923, 19 L. Ed. 2d 983, 88 S. Ct. 852 (1968).
Background of Present Controversy
The carriers and the BLFE disagreed as to the consequence of our 1967 ruling and the ensuing judgment. *fn1 For a time they negotiated upon a new national agreement concerning use of firemen but that proved fruitless. On September 17, 1968, the carriers filed a motion in District Court for supplemental relief, seeking judicial interpretation and approval of the carriers' view of our "new run" ruling. At the suggestion of District Judge Holtzoff a motion for clarification was filed by the carriers in this court on February 10, 1969.
A voluminous file developed in a modern day counterpart to the prolixities of common law pleading. The carriers' 50-page motion was accompanied by a 60-page affidavit, and some 107 pages of exhibits. The BLFE's 30-page "response" attached an affidavit of 9 pages, and appendices of 280 pages (many of these, however, consisting of single entries of railway system lists). The carriers filed a "reply" of 35 pages, supplemental affidavit of 24 pages and some 7 pages of exhibits. The BLFE "supplemental memorandum" was a modest 10 pages.
This court called for initial determnation by the District Court in the first instance on "the interpretation and application of these opinions to the fact situations now presented." *fn2 The District Court, with Judge Corcoran replacing the late Judge Holtzoff, was presented with the carriers' motion for supplemental relief and a new motion by BLFE for injunctive relief to compel the carriers to man certain runs with firemen in accordance with the BLFE interpretation. The District Court did not take evidence, but disposed of the matter on the basis of the memoranda, affidavits and exhibits that had been filed in this court with some supplementation, principally in the form of extensive oral argument. Its ruling adopted the position of the carriers.
Issues Arising Under New Run Ruling
The application of our "new run" ruling which appeared in our supplemental Akron opinion of July 31, 1967, requires a restatement of that ruling in its full background.
In our initial opinion of May 12, 1967, we broadly reviewed the impact of the work of the Board of Arbitration (Board 282) established pursuant to Public Law 88-108, 77 Stat. 132, passed on August 28, 1963. The Award of Board 282 established a procedure permitting the elimination of 90% of the firemen (helper) positions which the carriers considered an unnecessary overmanning. The BLFE contended that this Award was limited by § 4 of Public Law 88-108 to a life of "two years from the date the award takes effect," that on expiration of the Award in 1966 the work rules in effect on the carriers reverted to the work rules in effect prior to the passage in 1963 of Public Law 88-108. While we agreed that this contention had logic, we considered that the intention of Congress could not reasonably be taken to "obliterate not only the Award as a document with legal effect but also the physical facts that came into being during the 2-year period." *fn3 We held:
Our ruling is that the work rules created by the Award constituted a new plateau that was not automatically eroded when the Award expired. The legal underpinning for our ruling is not the Joint Resolution, which expired after 180 days of life -- except insofar as necessary to sanction the Award. The ruling is not based on the Award, which had only a 2-year life, or on any agreement of the parties. The predicate of our ruling is, simply, the force of the Railway Labor Act. Certain work rules were in force on January 24, 1966 (or March 30, 1966, in the case of the BLFE). The mandate of the Railway Labor Act requires that the work rules in effect on any particular day shall also be in effect the following day -- beyond the power of either party to institute a unilateral modification -- subject to change only in accordance with the procedures prescribed by the Act. . . . What we are in effect holding is that since Public Law 88-108 is silent as to the applicable legal rule, the case is governed by the combination of undeniable physical facts plus the general legal rule of the Railway Labor Act. *fn4
We invited the parties to request supplemental rulings on any matters not explicitly covered by our original opinion. A question arose as to the status of the "blanking" procedure developed ...