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April 28, 1995

ALTON & SOUTHERN RAILWAY CO., et al., Plaintiffs,

The opinion of the court was delivered by: THOMAS F. HOGAN

 Pending before the Court is the plaintiffs' Motion for a Preliminary Injunction. The plaintiffs assert that a preliminary injunction is necessary in order to prevent a strike by members of the defendant Brotherhood of Maintenance of Way Employes ("BMWE") against one or more railroads. This motion has been fully briefed by the plaintiffs and the BMWE and the Court conducted a hearing on April 26, 1995. After carefully considering the testimony of the witnesses at the hearing, the parties' briefs, arguments, exhibits, depositions, affidavits, declarations, and other submissions, the Court finds that it is appropriate to issue a preliminary injunction. Accordingly, the Court will enjoin the BMWE from engaging in any form of self help, including strikes against one or more of the plaintiffs, until this Court has ruled upon the plaintiffs' request for a permanent injunction pursuant to the Railway Labor Act, 45 U.S.C. §§ 151 et seq. ("RLA").


 The plaintiffs are a group of 29 rail common carriers. The defendant BMWE is a union representing workers employed by the plaintiff carriers. The parties are currently embroiled in a dispute related to the ground rules for the current round of collective bargaining. Although the background of this particular case is not extraordinarily lengthy, the Court would be remiss if it failed to acknowledge that the relationships between the rail carriers and their workers have often been quite strained. The background of any single railway labor dispute cannot be viewed in a vacuum. Rather, the origins of this matter (as well as many other disputes) can probably be traced back prior to 1894, when Eugene V. Debs led members of the American Railway Union in a turbulent strike against the Pullman Palace Car Company of Illinois. Although the parties' tactics may have changed in the intervening century, carriers and railway unions still have difficulty reaching amicable settlements of their disputes. Thus, a federal court once again has been called upon to step in and determine the legality of a potential strike by railroad workers.

 The seeds for the instant case were planted at the conclusion of the 1988 round of collective bargaining between the parties. During that round of bargaining, the BMWE and several other unions were unable to reach agreements with the carriers. After the parties failed to settle their differences, the President of the United States created Presidential Emergency Board No. 219 ("PEB 219") to investigate and report on the disputes. After conducting its investigation, PEB issued a report, which contained a series of recommendations. While some unions reached settlements, others, including the BMWE, instituted a strike on April 17, 1991. On the following day, Congress stepped in and ended the strike by enacting Pub. L. No. 102-29, 105 Stat. 169 (1991). As a result of the action of Congress and the Special Board created by Pub. L. No. 102-29, the BMWE entered into an imposed agreement with the carriers. The BMWE was not pleased with the imposed agreement. Accordingly, the BMWE has attempted to devise a means to avoid another congressionally-imposed agreement.

 The imposed agreement contained a moratorium period until November 1, 1994, for filing new § 6 notices of proposed changes in rates of pay, rules, and working conditions. *fn1" Prior to November 1, 1994, the plaintiff carriers designated the National Carriers' Conference Committee ("NCCC") to act as their authorized national multi-employer bargaining agent to represent them in negotiations with railway labor unions, including the BMWE. *fn2" However on October 27, 1994, Mac A. Fleming, the national President of the BMWE, sent a letter to the carriers informing them that the BMWE had decided not to participate in multi-employer bargaining. Instead, the BMWE intended to bargain with each individual carrier. By rejecting multi-employer bargaining, the BMWE sought to avoid a national emergency that might prompt Congress to once again intervene and impose an agreement on the parties.

 On November 1, 1994, the carriers served § 6 notices upon the BMWE suggesting proposed changes in wages, health and welfare benefits, and work rules. The carriers sought to bargain on a multi-employer basis. On the same day, the BMWE served § 6 notices upon the individual carriers and also proposed a variety of changes in wages, health and welfare benefits, and work rules. However, the BMWE sought to bargain with each carrier on an individual basis. The BMWE's § 6 notices were nearly identical and indicated that no agreement could be final until approved by President Fleming of the BMWE. *fn3"

 Anticipating that the BMWE would be attempting to avoid multi-employer bargaining, the carriers filed the instant lawsuit on November 1, 1994. The carriers seek, inter alia, a declaratory judgment declaring that the BMWE is obligated to bargain on a national-handling basis with the NCCC with respect to the issues raised in the current round of collective bargaining, an injunction ordering the BMWE to bargain on a national-handling basis with the NCCC, and an injunction enjoining the BMWE from engaging in premature self help activities. The BMWE and its individual General Chairmen have filed a counterclaim against the carriers seeking a declaratory judgment declaring that the carriers are violating the RLA by refusing to meet with the BMWE's individual bargaining representatives and failing to exert every reasonable effort to resolve the disputes. The BMWE also seeks a declaratory judgment declaring that the carriers' insistence upon multi-employer bargaining interferes with its right under the RLA to designate its bargaining representatives. Additionally, the counterclaimants also seek an injunction enjoining the plaintiffs from interfering with the BMWE's right to designate its bargaining representatives.

 Although nearly six months have passed since the parties filed their § 6 notices, no bargaining has taken place. The parties on both sides appear to blame their opponents for this situation. The carriers assert that the BMWE's refusal to bargain on a multi-employer basis violates the RLA's requirement to "exert every reasonable effort" to reach an agreement. 45 U.S.C. § 152 First. The BMWE argues that the RLA gives it the right to decline to participate in multi-employer handling. It asserts that the carriers are violating their obligation not to interfere with the BMWE's selection of its bargaining representatives under the RLA. 45 U.S.C. § 152 Third. Additionally, the BMWE argues that the carriers are the ones violating the RLA's requirement that the parties "exert every reasonable effort" to reach an agreement. 45 U.S.C. § 152 First. *fn4"

 In January of 1995, the carriers and the BMWE both filed cross-motions requesting a preliminary injunction. The carriers sought a preliminary injunction requiring the BMWE to bargain with them on a multi-employer basis. The BMWE sought a preliminary injunction enjoining the carriers from refusing to bargain on a local basis. After reviewing the parties' thorough briefs and hearing oral argument on these motions, the Court denied both requests for injunctive relief in a Memorandum Opinion filed on February 21, 1995. *fn5" Alton & Southern Railway Co. v. Brotherhood of Maintenance of Way Employees, Civil Action No. 94-2365, 1995 U.S. Dist. LEXIS 2740, at *4-6 (D.D.C. February 21, 1995). The Court rejected the carriers' argument that national handling can always be compelled and also rejected the BMWE's argument that national handling is always voluntary because both positions conflicted with the holding of Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. Co., 127 U.S. App. D.C. 298, 383 F.2d 225, 229 (D.C. Cir. 1967), cert. denied, 389 U.S. 1047, 19 L. Ed. 2d 839, 88 S. Ct. 790 (1968). Relying on Atlantic Coast Line, the Court found that the RLA does not necessarily compel national handling of all issues, but may compel national handling of certain issues. The Court thus found that neither party had demonstrated a substantial likelihood of success on the merits and that there was no risk that either the carriers or the BMWE would be irreparably injured in the absence of injunctive relief. The BMWE appealed this Court's decision and the Court of Appeals affirmed this Court's ruling on April 25, 1995. Alton & Southern Railway Co. v. Brotherhood of Maintenance of Way Employees, 1995 U.S. App. LEXIS 12153, *2, No. 95-7042 (D.C. Cir. April 25, 1995).

 On March 17, 1995, the carriers filed the motion for a preliminary injunction that is currently before the Court. The carriers seek to enjoin the BMWE from engaging in a strike or any other form of self help until this Court issues a final ruling on the carriers' request for a permanent injunction. In the motion, the carriers assert that any strike would be unlawful because the parties have not exhausted the RLA's long and drawn-out procedures. They also argue that any strike will inflict irreparable harm on the carriers, as well as shippers commuters, and the public.

 In their preliminary injunction motion, the carriers indicate that the BMWE has threatened a strike against plaintiff Consolidated Rail Corporation ("Conrail"). On January 3, 1995, the BMWE General Chairmen on Conrail filed applications for mediation with the National Mediation Board ("NMB"). The NMB did not immediately docket the mediation, but began an investigation. Apparently frustrated with the NMB's actions, the General Chairmen withdrew their application on January 31, 1995.

 On March 16, 1995, the BMWE General Chairmen on Conrail asked Conrail to begin negotiations with them on March 20 or 21, 1995. On March 20, 1995, the NCCC responded on behalf of Conrail and stated that it was willing to meet with the General Chairmen in order to discuss possible ways that negotiations could proceed, but also indicated that it could not schedule such a meeting until May 5 or 12, 1995. The BMWE General Chairmen did not find this response satisfactory. Thus, on March 21, 1995, they informed Conrail and the NCCC that they considered the RLA conferences on the BMWE's § 6 notices to have been terminated. The BMWE took the position that if Conrail did not request mediation from the National Mediation Board ("NMB") within 10 days, the BMWE could lawfully resort to self help against Conrail. See Brotherhood of Ry., Airline & S.S. Clerks v. Philadelphia, Bethlehem & N.E. R.R. Co., 633 F. Supp. 371, 373 (E.D. Pa. 1986) (finding that self help is permitted if neither party requests mediation from NMB within 10 days after conference fails).

 On March 30, 1995, carriers applied to the NMB for mediation. The BMWE opposed the carriers' request and asserted that the application was improper because it sought mediation of all the carriers' disputes with the BMWE, rather than only the BMWE's dispute with Conrail. On March 31, 1995, the NMB found that the dispute constituted a "labor emergency" within the meaning of § 5 First of the RLA. 45 U.S.C. § 155 First. The NMB proffered its services to the Conrail dispute as well as the other disputes between the carriers and the BMWE. The NMB specifically stated that it was not determining whether bargaining should take place on a national or local basis. However, it noted that invocation of mediation preserves the status quo under the RLA.

 The RLA was passed "to encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions in interstate commerce." Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969). The RLA does not prohibit strikes, but contains a complex set of procedures for delaying strikes over major disputes, such as the formation or revision of collective bargaining agreements, in order to ensure that the parties have a sufficient opportunity to negotiate and mediate their disputes. Delaware & Hudson Ry. Co. v. United Transp. Union, 146 U.S. App. D.C. 142, 450 F.2d 603, 607 (D.C. Cir.), cert. denied, 403 U.S. 911, 29 L. Ed. 2d 689, 91 S. Ct. 2209 (1971). Under these procedures:

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).

 There is no doubt that the parties have not exhausted these procedures. Although the parties did not initially confer about their disputes, the NMB's decision to proffer its services sua sponte provides the parties with an opportunity to begin to exhaust the RLA procedures. Given the fact that the parties' dispute is currently in mediation, it appears at first blush that the BMWE is required to refrain from altering the status quo by striking or resorting to some other means of self help until the RLA's remedies are exhausted. Id.; Detroit & Toledo, 396 U.S. at 148; Delaware & Hudson, 450 F.2d at 607. Thus, ...

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