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August 30, 1989


Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 The International Association of Machinists and Aerospace Workers ("IAM" or "the Union") and the Southern Pacific Transportation Company ("the Southern Pacific" or "the Railroad") have been involved in a labor dispute since 1977. Their dispute has been in arbitration before the National Mediation Board ("NMB" or "the Board") since 1983. IAM brought this action seeking injunctive relief requiring the NMB to terminate mediation. All parties have moved for summary judgment, and the motions have been argued.


 Labor-management disputes in the railroad industry are governed by the Railway Labor Act, 45 U.S.C. §§ 151-88 ("the Act"). The primary purpose of the Act is to protect the public from the crippling effects of interruptions of interstate commerce. See Detroit & Toledo S.L.R.R v. United Transp. Union, 396 U.S. 142, 148, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969) (" Detroit & Toledo "). The Act, however, does not effectuate its purpose by regulating the forms of self-help available to parties. Rather, the Act establishes an elaborate process of negotiation, mediation, voluntary arbitration, and conciliation, and imposes on the parties an obligation to "make every reasonable effort to negotiate a settlement and to refrain from altering the status quo by resorting to self-help while the Act's remedies [are] being exhausted." Id. at 149.

 The Act's procedures for resolving major disputes have been summarized by the Supreme Court as follows:

The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. 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 R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (1969); see 45 U.S.C. §§ 152 Second, Seventh, 155 First, 156, 157, 160. Once this process is exhausted -- i.e. the Board has terminated mediation, the parties have rejected arbitration, and presidential review is complete -- the parties may resort to unrestricted economic warfare. See International Ass'n of Machinists & Aerospace Workers v. National Mediation Bd., 138 U.S. App. D.C. 96, 425 F.2d 527, 533 (D.C.Cir. 1970) (" Machinists ").


 A short history of the mediation in this case is necessary to evaluate IAM's request for termination. In March 1977 and October 1981, IAM served bargaining proposals on Southern Pacific under section 6 of the Act. See 45 U.S.C. § 156; Declaration of Charles E. Lamb ("Lamb Decl.") at paras. 12, 14; Declaration of E.B. Kostakis ("Kostakis Decl.") at para. 3. Although the exact parameters of the dispute are not spelled out in the record, the notices sought comprehensive changes in the parties' existing agreement and involved numerous discrete issues. See Lamb Decl. at paras. 12-16. From April 1977 to February 1983, the parties met on five separate occasions and unsuccessfully attempted to bargain to a settlement. In September 1983, IAM requested NMB mediation under section 5 of the Act. See 45 U.S.C. § 155 First; Lamb Decl. at paras. 13, 17-18; Kostakis Decl. at paras. 4-5.

 The first mediation session was conducted by Mediator Richard Cosgroves on November 15 and 16, 1983. The parties then met on their own on November 29, 1983, without success. See Lamb Decl. at para. 19; Kostakis Decl. at paras. 6-7. In 1984, the Board assigned Mediator Charles Barnes to the case, and he conducted the second mediation session on April 17 and 18, 1984. See Lamb Decl. at para. 20; Kostakis Decl. at para. 8. No agreement resulted, and on May 9, 1984, IAM requested that the Board terminate mediation. The Board, however, elected to continue mediation. See Lamb Decl. at para. 20.

 The third mediator assigned to the case, Joseph Smith, conducted the third, fourth, fifth, and sixth mediation sessions on August 15 and 16, October 16, 17, and 18, and December 11, 1984, and January 22 and 23, 1985. See Lamb Decl. at paras. 21-22; Kostakis Decl. at para. 10. Claiming that "the efforts of the NMB have been fruitless," IAM again requested that the Board terminate mediation in June 1985. See Lamb Decl. at para. 23; Kostakis Decl. at para. 13. A seventh mediation session was held on October 29 and 30, 1985, following which, the Board recessed mediation. See Lamb Decl. at paras. 24-27.

 After October 1985, neither party requested further action by the Board until IAM made its third request to terminate mediation in October 1988. See Lamb Decl. at para. 28; Kostakis Decl. at para. 11. During this three year period, the parties met without a mediator on three occasions, but they did not reach any agreement. See Kostakis Decl. at para. 12. Following IAM's October 1988 request to terminate, the Board assigned a fourth mediator, Joseph Ingles, who conducted the eighth mediation session on January 18, 1989. See Lamb Decl. at paras. 28-29; Kostakis Decl. at paras. 13-15. On April 3, 1989, IAM made its fourth request to terminate the mediation, and the Board responded by scheduling another session with a new mediator, Thomas Green. See Kostakis Decl. at paras. 16-20. IAM filed its complaint in this action on May 26, 1989.

 Subsequent to this filing of this action, the parties have attended mediation sessions on July 6 and 7, July 12 and 13, and August 2 and 3, 1989. See Supplemental Declaration ...

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