Hastings, Senior Circuit Judge, Fairchild and Kerner, Circuit Judges.
Acting on a complaint filed by Illinois Central Railroad Company (IC), joined by plaintiff-intervenor United Transportation Union (UTU), the federal district court enjoined defendants Brotherhood of Locomotive Engineers and its officers and employees, acting in concert with the union (BLE), from striking against the IC because of a dispute arising from the rules governing the regulation of the engineers' extra list as fixed in a tripartite agreement executed January 27, 1960.
IC is a common carrier engaged in interstate commerce by railroad and is subject to the Railway Labor Act, Title 45, U.S.C.A. § 151 et seq.
UTU is the successor organization to the Brotherhood of Locomotive Firemen and Enginemen (BLF&E) and is the representative under the Railway Labor Act of class or craft of locomotive firemen and enginemen of IC.
BLE is the representative under the Railway Labor Act of the class or craft of locomotive engineers of IC. The individual defendants are officers of BLE or employees of IC in the class or craft of locomotive engineers.
All parties agree that historically, as the district court found, on the IC and the railroad industry generally, an employee hired as a fireman may become qualified as an engineer after work experience and passing required examinations. Substantially all engineers come from the ranks of firemen. The term "enginemen's crafts" is used to include employees in the crafts of engineers and firemen.
The first regular work as an engineer performed by a fireman who has qualified to enter the ranks of engineers is usually an assignment to the engineers' extra list (also called engineers' extra board). Such a "promoted" fireman would generally be the fireman with most seniority on the particular seniority district. Engineers on the extra list perform service in place of absent regular engineers or when the IC adds assignments. If there is no vacancy and not an extra assignment, the men working on the extra list perform no service and receive no compensation. An employee taken from the engineers' extra list usually is returned to firing, at which time he may exercise his fireman's seniority to take the position held by a fireman on the seniority district with less seniority. Such a displaced employee may in turn displace another fireman with still less seniority. It is possible that by the time the displacement process is completed, the last displaced fireman may be left with no position.
The ebb and flow process between the crafts of firemen and engineers described above is initiated each time the engineers' extra list is increased or decreased.
The number of employees assigned to the engineers' extra list is regulated by certain rules relating, inter alia, to the mileage worked. The rules had their origin on the IC in the Chicago Joint Agreement of May 17, 1913, entered into by the chief executives of BLE and BLF&E. The rules were amended the last time in 1960 and appear in identical form in the engineers' and firemen's schedules. The two identical documents were both executed by the IC and respectively by authorized representatives of BLE and BLF&E.
The dispute underlying the instant action arose when BLE served upon the IC a notice under Section 6 of the Railway Labor Act, 45 U.S.C.A. § 156, requesting the following revision in the rules regulating the engineers' extra list:
"In regulating engineers' extra list, checking of the mileage and resultant adjustments, if any are called for, may be made by or with the approval of the local chairman of the engineers at any time, but must be made on the first, eleventh and twenty-first day of each calendar month, upon the basis of the average mileage for the preceding ten days, using accumulated mileage as registered by engineers in book provided for that purpose as basis of calculation." (New material italicized.)
It is undisputed, and the district court so found, that the purpose of the Section 6 notice was to afford the Engineers' local representative the exclusive right to demand a check of the mileage accrued on the engineers' extra list on any day other than those days on which a check of the mileage was required to be made, i.e., on days other than the first, eleventh, and twenty-first of each calendar month.
The Section 6 notice described was not served on the Firemen, and the Engineers have refused the requests of the IC and the Firemen to allow the Firemen to participate in the negotiations over the Engineers' notice. The position taken by the Engineers is that it alone has the exclusive right to bargain concerning the engineers' extra list and that any agreement the Firemen have dealing with the matter is illegal and of no effect.
A strike called by BLE against the IC for June 12, 1968 was subsequently averted after intervention by the National Mediation Board. On July 26, 1968, the General Chairman of the Firemen sent a letter to the IC reminding the railroad that the Firemen were a party to the 1960 agreement sought to be amended by BLE's Section 6 notice, concluding as follows:
"I am sure you are well aware of the fact that the agreement of January 27, 1960, between this carrier and the BLE is identical to the agreement of the same date entered into between the carrier and the BLF&E. Although the agreements were not signed jointly, any changes made in either of the agreements, by any of the parties thereto, could very ...