PARKER, District Judge.
This action, arising under the Railway Labor Act,
(hereafter the RLA or the Act), and brought by the United Transportation Union, (hereafter the UTU or the Union) against the major rail carriers of the nation, presents to the Court another chapter of a longstanding dispute dealing with the requirements for manning freight and yard diesel locomotives with firemen. The Union seeks a declaratory judgment that once all bargaining procedures provided under the Act have been exhausted, it has the right to strike the railroads individually and selectively and is not restricted to a nationwide strike against all the carriers. The carriers have filed a counterclaim contending that there having been so-called national handling of the fireman manning dispute, any strike by the Union against fewer than all of the carriers involved in such group bargaining violates the Act.
The carriers request the Court to declare the selective strike unlawful and to grant injunctive relief against the Union's proposed course of conduct. At this posture of the proceedings, the Court considers the Union's motion for summary judgment and the motion of the carriers for a preliminary injunction.
For the reasons set forth, the Court concludes that the motion of the plaintiff Union for summary judgment should be granted and the motion of the defendant carriers for a preliminary injunction should be denied.
The underlying problem was recently described in a report of a special panel appointed by President Nixon pursuant to the provisions of the Act.
"The fireman manning issue is the Nation's longest extant labor dispute. And it is also the most studied, reviewed and volatile issue on the American Labor scene. Despite the intensive efforts of a veritable who's who of distinguished labor experts, the parties have failed to agree upon a solution. The dispute has been punctuated by recurrent national crises arising from actual and threatened nation-wide rail stoppages."
The dispute arises out of the continued use of firemen who were employed originally on steam locomotives. The carriers seek complete discretion as to the employment of these firemen on yard and freight diesel locomotives and thus to eliminate those whom they, in their own discretion, deem unnecessary. On the other hand, the Union seeks to restore positions previously eliminated, as well as to maintain existing fireman positions. The Union claims that "firemen are essential to rail operations for reasons of (1) safety, (2) avoidance of undue work burdens, (3) efficiency of operations and (4) providing a pool of trained men for promotion to engineer."
The events of this particular chapter of the controversy began in 1963. At that time the Congress, confronted by a nation-wide railroad strike, responded by enacting unprecedented legislation providing for compulsory arbitration of the issue.
In accordance with the statute, Arbitration Board 282, composed of representatives of labor, management and the public, was created. The Board rendered an award which was operative for a two year period, expiring on March 31, 1966.
The Board's award, sustained by the Courts against a union challenge,
gave authority to the carriers to eliminate certain fireman positions, set forth a procedure for the gradual elimination of the affected employees, and provided for separation benefits.
In November, 1965, prior to the expiration of the award, the Brotherhood of Locomotive Firemen and Enginemen (hereafter the BLF & E) pursuant to the Act
served certain bargaining notices on the carriers, requesting changes in the existing contract requirements governing the manning of freight and yard diesel locomotives with firemen, as modified by the award of Arbitration Board No. 282. In January, 1966, the defendant carriers served counter-notices on the BLF & Eseeking the unrestricted right to determine when firemen should be used on diesel freight and yard service locomotives. While several conferences were held between the parties, the carriers contended that the Union's notices were premature, and they refused to engage in negotiations. The BLF & E argued that after expiration of the award the operative work rules were those in effect when the Arbitration Board was created. Our Circuit Court resolved the questions by ruling that the issues presented by the Union's notices were proper and that the carriers were obliged to confer and bargain under the Railway Labor Act even though the period of the award had not expired. Further, the Court held that the carriers could no longer eliminate jobs under the terms of the award once it had expired; that the results of the award remained effective until changed in accordance with the procedures of the RLA; and that the BLF & Ecould not strike until those procedures were exhausted. Brotherhood of Railroad Trainmen v. Akron and Barberton Belt Railroad Co., 128 U.S. App. D.C. 59, 385 F.2d 581 (1967), as amended 1968, cert. denied 390 U.S. 923, 88 S. Ct. 851, 19 L. Ed. 2d 983 (1968).
In mid-1968 the parties invoked the services of the National Mediation Board as provided under the Act.
Several rounds of negotiation proved unsuccessful and on November 4, 1969, after advising the parties of failure in its mediation efforts, the Board terminated its services. In accordance with the Act, the parties were then free to resort to self-help on December 5, 1969. However, negotiations were resumed in early 1970 with the assistance of a special mediator appointed by the Secretary of Labor. These negotiations were equally unsuccessful and the efforts of the special mediator were terminated.
On July 7, 1970, the UTU
invoked its right of self-help under the Act on its 1965 bargaining notices and struck four carriers. On that same day the carriers applied for and were granted a temporary restraining order by this Court.
The carriers challenged the legality of any selective strike by the Union. Shortly after the issuance of the temporary restraining order, and pursuant to the provisions of the Railway Labor Act, President Nixon created an emergency board to investigate and report concerning the dispute.
This action precluded both parties from recourse to self-help for sixty days. Following the presidential action the temporary restraining order was vacated as moot and the carriers withdrew their complaint.
On July 22, 1970, prior to the expiration of the services of Emergency Board 177, the Union filed this action for a declaration that, upon exhaustion of all procedures under the Railway Labor Act, its right to self-help is not restricted to a nationwide strike against all the carriers, but rather it is entitled to strike one or more of the carriers.
Although the Emergency Board made recommendations in its Report to the President on August 6, 1970, the parties were unable to conclude a complete and final agreement. However, negotiations continued by agreement between the Union and the carriers, as well as with the encouragement of this Court. When the matter came before the Court on the Union's motion for summary judgment and the carriers' motion for a preliminary injunction, representations were again made that negotiations would continue. The Union however emphasized that all negotiations subsequent to the report of the Emergency Board were without prejudice to its claimed right of self-help against individual carriers.
At the outset the carriers contend that the action by the Union seeking relief is premature because bargaining and negotiations continue and the possibility of reaching an agreement has not been completely lost and thus no true impasse is present.
The procedures for resolving a major dispute under the Act were recently and succinctly outlined by the Supreme Court:
"* * * A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens 'substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,' who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10." Brotherhood of Railroad Trainmen et al. v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S. Ct. 1109, 1115, 22 L. Ed. 2d 344 (1969).
This current phase of negotiations on the fireman manning issue extends over a five year period. There have been endless and protracted bargaining conferences. The services of the National Mediation Board have been utilized. Arbitration has been rejected by the Union. Presidential action further delaying a strike has been taken. Services of special mediators have been employed. All of these efforts undertaken within the framework of the Railway Labor Act have nevertheless proved unavailing to secure a mutually satisfactory agreement.
The Court, therefore, finds from this record that all statutory procedures have been exhausted. A strike is now imminent and the Union has declared its intention to move on a selective basis. It seeks a ruling from this Court at the point when all statutory requirements have been expended. The carriers' motion for a preliminary injunction as well as their counsel's suggestion at oral argument that the Court could grant relief on their behalf by way of summary judgment appear to be veiled recognition of the futility of the bargaining process at this point.
But has the Union in its various stages of negotiations bargained in good faith and thus exhausted the statutory remedies in fact as well as within the framework of the statutory requirements?
In Virginian Railway Co. v. System Federation, etc., 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789 (1937) Justice Stone commented on this duty under the Railway Labor Act as follows:
"* * * The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representatives of its employees, * * *, to enter into a negotiation for the settlement of labor disputes such as is contemplated by section 2, First." at 548, 57 S. Ct. at 599. Also, N.L.R.B. v. Insurance Agents' International Union, A.F.L.-C.I.O., 361 U.S. 477, 485, 80 S. Ct. 419, 4 L. Ed. 2d 454 (1960).