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February 11, 1963


The opinion of the court was delivered by: Perry, District Judge.

This cause has come on to be heard upon the motion of the defendants to dissolve the restraining order heretofore entered herein which by its terms expires this day and upon the motion of plaintiff for a preliminary injunction.

Time within which the defendants are required to answer has not expired and they have not filed a written answer. However, by counsel in open court they have answered and denied all material allegations other than those passed upon in civil action No. IP63-C-47 in the United States District Court for the Southern District of Indiana by the Honorable William E. Steckler, Chief Judge of that District, wherein the same parties were therein also respectively plaintiff and defendants. For the purpose of this suit both parties admit the truth of the Findings of Fact by that Court.

The plaintiff introduced exhibits as evidence and also testimony, and the defendants cross-examined herein. Each of the parties made opening statements, including statements and admissions of fact that this court has considered.

The court finds the facts herein to be as hereinafter set forth:


1. Plaintiff Monon Railroad is an Indiana corporation engaged in furnishing rail transportation between Chicago, Illinois, via Indianapolis, Indiana and Louisville, Kentucky, and intermediate cities and towns, and is the only such carrier servicing many of them. It is a carrier within the meaning of that term as defined in Section 1 of the Railway Labor Act, 45 U.S.C. § 151.

2. Defendant Brotherhood of Railroad Trainmen is a labor organization and is an unincorporated association doing business in this judicial district, and is sued in its common name and is a representative of all of its members who constitute a class so numerous as to make it impossible to bring them all before this court.

4. Defendant S. Vander Hei is a Vice President of the Brotherhood residing in Chicago, Illinois. He is sued individually as a member and officer of defendant Brotherhood and as representative of the members of the Brotherhood who are so numerous as to make it impossible to bring them all before this court.

5. This action arises under the acts of Congress regulating commerce, including Part 1 of the Interstate Commerce Act, 49 U.S.C. § 1 et seq. and the Railway Labor Act, 45 U.S.C. § 151 et seq. The amount in controversy is in excess of $10,000, and this court has jurisdiction under Sections 1331 and 1337, 28 U.S.C.

§ 6. On or about January 26, 1963 defendants caused to be served upon plaintiff the following telegram:

  Director of Personnel, Report Delivery=

"Phone G17-1362 611 North 26 St Lafayette Ind.

  "In support of B. of R.T. May 9, 1962 formal section
  six notice for indemnifying insurance covering
  deadheading employees. The general grievance
  committee in executive session this date, with the
  approval of the president of the Brotherhood of
  Railroad Trainmen decided on a peaceful withdrawal of
  their members from the service of the Monon Railroad
  at 1159 PM Saturday, January 26 1963.
  "Garland F. Brown Sr Deputy President Room 413 Van
  Orman Fowler Hotel, Lafayette Ind."

7. Defendants did strike against plaintiff at 11:59 P.M., Saturday, January 26, 1963, and said strike continued until 7:00 P.M. January 27, 1963, at which time it was temporarily restrained by an order of the United States District Court for the Southern District of Indiana, Indianapolis Division.

8. There is no dispute over the facts in this cause. Counsel for the parties disagree only over whether "deadheading" as alleged has been proved. The differences between counsel are purely semantic. Plaintiff alleges in the Complaint and defendants admit through their counsel in his opening statement and throughout his argument that employees of the Monon Railroad of different crafts and classes are required by Monon Railroad to ride on various vehicles upon public highways in connection with their employment and that they and their dependants are not protected by a form of public liability insurance while so travelling. This controversy has continued since notice of a proposed change in compensation was made by defendants on May 9, 1962 and served upon plaintiff on May 11, 1962. There is no issue upon that fact that the parties failed to reach any agreement. Each of the parties rejected arbitration; mediation was terminated, and each of the parties was free to resort to self help or economic pressure under the law prior to the bringing of this suit. In the interim the parties reached a substantial agreement upon the amount of coverage of the employees of plaintiff represented by defendants as follows:

  "The aforesaid policy shall cover all employees in
  the craft or class represented by the Brotherhood of
  Railroad Trainmen when required by the Monon Railroad
  to ride in or on any vehicle operated over a public
  thoroughfare and each employee shall be protected by
  a public liability policy on which the plaintiff will
  pay the premiums, said policy to provide the
  following benefits: (1) $100,000 for accidental death
  or dismemberment; (2) $3,000 blanket accident medical
  reimbursement, and (3) 80% of the insured employee's
  salary from the Monon to a maximum $100 per week for
  a maximum of three (3) years, and further that

  said policy shall be in a reputable insurance

The only issue remaining between the parties at trial time concerned the writing of the same into a new rule. The plaintiff refused to agree to a change of rule making the foregoing a binding obligation, taking the position that a final decision should await the overall settlement upon a national basis between all railroads and all labor unions, and demanded a right of cancellation upon a thirty (30) day notice. The defendants demanded a firm change of the rule without delay. The plaintiff made an offer in open court to carry out the foregoing, conditioned upon a no strike pledge. The defendants refused to accept any such conditions.

9. Both parties agreed in open court that the controversy herein is identical with that brought by the same plaintiff and the same defendants in the United States District Court for the Southern District of Indiana, Indianapolis Division (Civil Action No. IP63-C-47), entitled Monon Railroad vs. Brotherhood of Railroad Trainmen, et al., except that in this cause the plaintiff has made the additional following charges and seeks relief thereon.

These charges are:

(A) "On November 2, 1959, substantially all of the nation's railroads, including the Monon, served on the labor organizations representing their operating employees, including defendant Brotherhood, certain notices under Section 6 of the Railway Labor Act, 45 U.S.C. § 156, seeking extensive changes in the work rules and pay structures of the operating employees. On or about November 2, 1959 the Monon authorized the Eastern Carriers Conference Committee to represent it in either regional or national conferences. On or about September 7, 1960, at the request of the operating Brotherhoods, including defendant, substantially all of the nation's railroads, including the Monon agreed to waive local handling of the issues raised in the operating Brotherhood's notice of September 7 1960, to permit joint handling of those issues on a national level growing out of the carriers' notices of November 2, 1959. The various proceedings between the railroads, including Monon and the operating Brotherhoods involving these national issues, are hereinafter referred to as the "National Case". The National Case involved an attempt by the Carriers, including plaintiff, to negotiate comprehensive changes in the work rules affecting rates of pay, hours and working conditions both generally and as to deadheading (see Appendix B to defendant's Brotherhood's complaint in No. 62 C 1451 against plaintiff and numerous other railroads, Part II. A. 5.)

(B) "The proposed contract changes designated by plaintiff's notice of November 2, 1959 and the Brotherhood's notice of September 7, 1960 have been the subject of extensive study and negotiation on the part of bargaining teams representing the railroads, including plaintiff, on one side and the operating railroad unions, including defendant, on the other.

(C) "These nationally handled contract changes were the subject of a hearing before the Honorable J. Sam Perry in cause 62 C 1451 in the United States District Court, Northern District of Illinois, Eastern Division. In that case Judge Perry held that the railroads, including this plaintiff, had every legal right to institute the contract changes proposed in the carriers' November 2, 1959 notice. However, at the request of the plaintiffs in that case, including this plaintiff, Judge Perry issued a restraining order pending appeal under Rule 62(c) of the Federal Rules of Civil Procedure. If Judge Perry had not entered this restraining order to maintain the status quo, the carriers, including plaintiff, barring intervention by a presidentially appointed emergency fact-finding board, would have put into effect their proposed contract changes of November 2, 1959, and the defendant, Brotherhood's contract proposals which form the basis of this scheduled strike would have become mute. (sic)

(D) "The Brotherhood's efforts to negotiate locally with the plaintiff on issues which are now the subject of industry wide negotiation by the appointed national representatives of plaintiff and defendant, and the strike action by the Brotherhood in support of these efforts, are an unlawful attempt to use two separate bargaining representatives to bargain over the same subject matter and to disrupt the orderly procedures of collective bargaining provided in Sections 2 and 6 of the Railway Labor Act. Defendants' Section 6 notice of May 9, 1962, proposing a change in work rules regarding deadheading over public thoroughfares ...

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