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AKRON, CANTON & Y.R. CO. v. INTERNATIONAL BRO. OF ELEC. WKRS.

December 24, 1964

AKRON, CANTON & YOUNGSTOWN RAILROAD COMPANY ET AL., PLAINTIFFS,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS ET AL., DEFENDANTS.



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

This cause, arising under the Railway Labor Act, comes on to be heard upon complaint and answer, a hearing in open court having been had upon motion for preliminary injunction after the granting of a restraining order.

Inasmuch as both parties have been permitted to present exhaustive evidence and argument of the law which the court has heard and considered, the court is of the opinion that any additional evidence would be cumulative and repetitious.

Therefore, the court on its own motion chooses to make final disposition of the cause at this time instead of ruling upon the motion for preliminary injunction now and then at a later time hearing possibly the same evidence and argument upon a motion for a permanent injunction. The importance of the case to the general public and the efficient use of judicial processes demand such a course of action.

The court makes findings of fact and states conclusions of law as follows:

FINDINGS OF FACT AS TO COUNT I

1. Each of plaintiffs is a common carrier by railroad engaged in Interstate Commerce; and each of the plaintiffs is a "carrier" as that term is defined in Section 1 of the Railway Labor Act (45 U.S.C.A. § 151). (Tr. 341)

2. Defendants International Brotherhood of Electrical Workers, International Association of Machinists, and Sheet Metal Workers' International Association (hereinafter referred to as defendant unions) are voluntary, unincorporated associations and labor organizations. The individual defendants are officers or agents of the defendant unions, and sued individually and as representatives of the officers and members of the defendant unions. The employees of plaintiffs who are members of the defendant unions (hereinafter referred to as class defendants) are so numerous as to make it impracticable to bring them before the Court, but the individual defendants fairly and adequately represent such class defendants for the purposes of these proceedings. (Tr. 341)

3. This is a suit to enjoin a strike of the plaintiffs' employees who are members of the defendant unions, which was called by the officers of said unions on December 8, 1964, to become effective at 6 a.m. on Tuesday, December 15, 1964, and which was postponed following the entry of a temporary restraining order by this Court on December 14, 1964, until after January 1, 1965. (Tr. 61-69; DX 13)

4. The purpose of the threatened strike was and is to compel the plaintiffs to bargain and to negotiate with each of the individual defendant unions and to enter into an agreement with each of said unions concerning the wages and rates of pay of plaintiffs' employees who are members of such respective unions. (Tr. 156-170)

5. Plaintiffs conduct approximately 90 percent of all common carrier railroad operations in the United States. Their properties and operations are integral parts of the nation's transportation system and connect with and operate in conjunction with other surface and air transportation systems. The strike which plaintiffs seek to enjoin would curtail or prevent such operations; would interfere with the movement of freight and passengers throughout the nation, contrary to public interest and national welfare; would deprive employees of the plaintiff of their employment during the duration of said strike; and would result in substantial and irreparable damage and injury to the plaintiffs. (Tr. 341)

6. The shop employees of each of the plaintiffs, including the class defendants and the employees of the plaintiffs who are members of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, the Brotherhood Railway Carmen of America, and the International Brotherhood of Firemen, Oilers, Helpers, Round House and Railway Shop Laborers (which are also unincorporated associations and labor unions) are represented for purposes of collective bargaining under the Railway Labor Act (45 U.S.C.A. § 151, et seq.) as a single bargaining unit by the Railway Employes' Department, AFL-CIO and its constituent System Federations. (Tr. 334, 544-547; DX 31; PX 10; PX 126-149; PX 170)

8. The System Federations of the Railway Employes' Department are subordinate components of the Department chartered by the Department to represent the Department on one or more individual railroad systems. (Tr. 522-523, 755-756, 758-759; PX 12, p. 34) The governing body of a System Federation is its Executive Board, which consists of the General Chairman of each of the affiliated unions. (Tr. 746-747) System agreements, containing the stipulated and agreed rates of pay of plaintiffs' shop employees, are executed for the System Federations by such General Chairmen in their capacities as members of the System Executive Boards. (Tr. 753-759, 785; PX 12, p. 34)

9. The National Mediation Board, pursuant to the provisions of Section 2 of the Railway Labor Act (45 U.S.C.A. § 152), has found and certified that the Railway Employes' Department, or one or more of its subordinate component System Federations, or one or more of its affiliated component unions operating through or functioning through such System Federations, Railway Employes' Department, are the duly designated and authorized representatives, for the purposes of the Railway Labor Act, of the shop employees of the plaintiffs who are members of such affiliated unions (Tr. 547; DX 31), and has interpreted such certifications to require the plaintiffs to bargain and make agreements, pursuant to the provisions of the Railway Labor Act, with such System Federations, Railway Employes' Department, and to require the representative authority existing in the individual component affiliated unions to be exercised only through such System Federations, Railway Employes' Department (DX 10). Representation rights among shop employees of the plaintiffs established through carrier recognition and not covered by certifications of the National Mediation Board are identical with those established through such certifications. (Tr. 544-545)

10. The Constitution and By-Laws of the Railway Employes' Department provide for the handling of concerted wage and agreement negotiations with the plaintiffs by the Department (PX 12, pp. 21-22), and further provide that

    "No organization having once agreed to a concerted
  program shall have the right to withdraw from said
  program." (PX 12, p. 22)
    "Committees, party to a concerted program under the
  provisions of this Article, shall have full power to
  conduct negotiations to a conclusion." (PX 12, p. 22)
    "The Executive Council shall at any time have
  authority to settle or terminate any strike." (PX 12,
  p. 26)
    "No individual system craft organization on a
  railway system where a System Federation is organized
  shall, without the consent of the President and
  Executive Council of the Department, negotiate a
  separate craft agreement with the management of the
  railway, but all such crafts shall be a party to the
  System Federation agreement negotiations." (PX 12, p.
  36)
    "No one except the President and Executive Council
  of the Department shall undertake to invoke the
  services of the National Mediation

  Board, or to enter into an arbitration affecting any
  of the organizations, or members thereof composing
  this Department." (PX 12, p. 37)
    "The Executive Board shall be the conference
  committee and shall have the authority to represent
  the System Federation, system craft organizations and
  members thereof in all negotiations with the
  management of the railway over which the System
  Federation has jurisdiction when the negotiations are
  of a system character." (PX 12, p. 34)
    "It is the obligation of the officers of the
  Department, every National, International and
  Brotherhood Organization and System Federation
  affiliated therewith to comply with the provisions of
  this Constitution and the decisions of the officers
  and Executive Council in conformity therewith and
  they shall refrain from any conduct which interferes
  with the performance by the Department or any of its
  subordinate bodies of their obligations under law or
  contract or any conduct which defeats or subverts the
  lawfully declared or established policies or
  objectives of the Department * *" (PX 12, p. 28)

11. In May of 1963, the Executive Council of the Railway Employes' Department, pursuant to the provisions of Article VIII of the Constitution and By-Laws of the Railway Employes' Department, inaugurated a joint national movement to revise the provisions of existing agreements between the plaintiffs and the System Federations, Railway Employes' Department, relating to the wages and rates of pay of the shop employees of the plaintiffs represented for purposes of collective bargaining by the Railway Employes' Department, as aforesaid. (Tr. 182-183; PX 11, pp. 21-22; DX 14)

12. On or about May 31, 1963, pursuant to instructions from the President and Executive Council of the Department, uniform notices were served by the System Federations on the plaintiff railroads, as provided in Section 6 of the Railway Labor Act (45 U.S.C.A. § 156), proposing uniform increases in the rates of pay of plaintiffs' shop employees. (Tr. 182-183; PX 3, pp. 93-114; DX 14)

13. Negotiations and bargaining on the individual railroad properties of the plaintiffs, following the service of the Section 6 notices of May 31, 1963, were between representatives of such railroads and the executive boards of the respective System Federations, pursuant to and as provided in Article VIII of the Constitution of the Railway Employes' Department and the By-Laws of such System Federations (Tr. 240-241; PX 11; PX 150, p. 16; PX 151, p. 14); but when no agreement was reached in such system negotiations the dispute was referred by the System Federations, as directed by the Railway Employes' Department, to the President and Executive Council of the Department to negotiate the subject matter of the dispute to a conclusion in accordance with the procedures of the Railway Labor Act with the Carriers' National Conference Committee. (Tr. 184-187, 720-721; PX 3; PX 93-114; DX 11 and 12, pp. 21, 22, 26, 34, 36, 37; DX 14)

14. Negotiations were thereafter had by and between the Carriers' National Conference Committee, representing the plaintiffs, and the President and the Executive Council of the Railway Employes' Department, acting as an Employees' Conference Committee, representing plaintiffs' shop employees, but no agreement was reached, and on January 15, 1964, the Railway Employes' Department by and through its President invoked the services of the National Mediation Board under the provisions of Section 5, First, of the Railway Labor Act (45 U.S.C.A. § 155, First). (Tr. 178, 190, 191; DX 3)

16. The plaintiffs through their National Conference Committee accepted the recommendations of the emergency board for the settlement of the dispute, but on November 12, 1964, the Executive Council of the Railway Employes' Department voted to reject such recommendations, and on the following day issued a strike call to all of plaintiffs' employees represented by the Department announcing the time and date of strike as follow: "Acting pursuant to the constitutions and laws of our respective organizations, operating through the Railway Employes' Department, AFL-CIO, and with the approval of the Executive Council and the President of the Railway Employes' Department, AFL-CIO, a strike is hereby called on the carriers listed in the appendix attached hereto to begin at 6:00 a.m. local time on November 23, 1964 unless a satisfactory agreement on our wage dispute is reached prior to that time." (Tr. 730-733; DX 10)

17. On November 21, 1964, a majority of the members of the Executive Council of the Railway Employes' Department requested the Carriers' National Conference Committee to enter into an agreement for and on behalf of the plaintiff railroads with the shop employees of the plaintiffs belonging to the crafts of blacksmiths, boilermakers, carmen and firemen and oilers and other members of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, the Brotherhood Railway Carmen of America, and the International Brotherhood of Firemen, Oilers, Helpers, Round House and Railway Shop Laborers, employed by plaintiffs, in settlement of the aforesaid wage dispute on the terms recommended by the emergency board. The Court observes that there was a "majority" only because the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers has two Executive Council votes. An agreement, as requested by said members of the Executive Council of the Railway Employes' Department, was made and entered into by the parties aforesaid in behalf of the said employees of the plaintiffs at or about noon of that day. (Tr. 288-290; DX 11) However, the agreement, which was not approved or signed by Michael Fox on behalf of Railroad Employes' Department cannot be considered to be the action of that organization but must be considered to be the action only of the individual unions and parties signatory thereto.

18. Immediately following the execution of said agreement the aforesaid members of the Executive Council of the Railway Employes' Department (who were, in fact, the chief officers, respectively, of the three unions, parties thereto) notified the officers and members of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, the Brotherhood Railway Carmen of America, and the International Brotherhood of Firemen, Oilers, Helpers, Round House and Railway Shop Laborers to disregard the strike call of the Railway Employes' Department dated November 13, 1964, and that insofar as they were concerned, the strike which had previously been authorized by the Railway Employes' Department was called off. (Tr. 290) The notification, however, was not joined in by Michael Fox for the Railroad Employes' Department and was not action taken by that organization.

20. Said agreement of November 21, 1964, was executed by plaintiff and by Boilermakers and Blacksmiths, Carmen and Firemen and Oilers under the auspices of the National Mediation Board. It was approved by J.E. Wolfe, Chairman of the National Railway Labor Conference and was witnessed by a member and mediator of the National Mediation Board.

21. Immediately after entering into the agreement with the Boilermakers and Blacksmiths, Carmen and Firemen and Oilers, the carriers, on November 21, 1964, filed an injunction suit to restrain the remaining organizations, namely, the IAM, IBEW and the Sheet Metal Workers, from carrying out the strike called for November 23. This action, entitled, Akron, Canton & Youngstown Railroad Company, et al., v. International Brotherhood of Electrical Workers, et al., No. 64 C 2054, was filed in the United States District Court for the Northern District of Illinois, Eastern Division. (To avoid confusion of the foregoing case with the case at bar, the foregoing case will be referred to as the first Akron case.) A hearing was held that afternoon on the carriers' motion for a temporary restraining order.

22. During the time that the hearing was being held in the United States District Court with respect to the first Akron case, the defendant organizations were meeting with the mediator and submitted to him a proposal for settlement of the wage issues involved. The proposal offered to settle the wage requests of the three organizations for wage increases was less than those requested in the Section 6 notices which had been served by the organizations on May 31, 1963.

23. Following the Court hearing of November 21, 1964 the Secretary of Labor, W. Willard Wirtz, requested the defendant labor organizations to postpone the strike and offered to use his best offices to facilitate collective bargaining between the parties on the wage issues (Def. Ex. 42, Tr. 845-8). That same day the strike was postponed by defendant labor organizations and the first Akron case was dismissed by the Court on plaintiffs' motion without prejudice. On November 30, 1964, and thereafter, pursuant to the request of the Secretary of Labor and the National Mediation Board (Def. Ex. 44; Tr. 851-61), the representatives of the carriers and the chief principal officers of IAM, IBEW and Sheet Metal Workers resumed collective bargaining negotiations with respect to the organizations' Section 6 notices of May 31, 1963, the report of Emergency Board 161 and the proposal for settlement submitted by these three organizations to the mediator on November 21, 1964.

24. Negotiations continued until December 7, 1964, at which time, failing to reach agreement, negotiations were suspended. The organization defendants had previously promised the Secretary of Labor that no strike would be called without at least 72 hours advance notice thereof to the Secretary. In compliance with this promise, defendant organizations, on December 8, 1964 sent a telegram to the Secretary of Labor stating that a strike was being called for 6:00 a.m. on December 15, 1964, more than 72 hours after the sending of the telegram of December 8 (Def. Ex. 12). At the same time, the defendant organizations advised their general chairmen of the new strike date (Def. Ex. 13).

25. This action was filed on December 8, 1964, the same date the telegram was sent. The plaintiffs again advanced the contention that the three defendant labor organizations are not representatives of the employees for collective ...


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