The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT and CONCLUSIONS OF LAW
This cause comes on for final judgment; and the Court, having
heard the evidence and considered the briefs and arguments of
counsel, hereby makes its findings of fact and conclusions of
1. Plaintiff Chicago and North Western Railway Company is a
corporation engaged in the transportation by rail of passengers
and freight in interstate commerce and a "carrier" within the
meaning of Section One (1) of the Railway Labor Act (45 U.S.C. § 151).
2. The defendant United Transportation Union is a voluntary
unincorporated labor organization which is the successor to the
former Brotherhood of Railroad Trainmen and other labor unions,
and represents under the Railway Labor Act (45 U.S.C. § 151 et
seq.) certain employees of the carrier in road and yard service.
The acts attributed herein to the union include acts of the
former Brotherhood of Railroad Trainmen. (Complaint p. 2; Answer
3. As a result of the Award of Arbitration Board No. 282, which
board was established pursuant to Public Law 88-108 (77 Stat. 132
(1963)), the carrier was in 1965 required to operate
substantially all its mainline freight crews with a minimum crew
consist of one conductor and two brakemen, but was permitted to
operate most of its other road and yard crews with a minimum crew
consist of one conductor and one brakeman, subject to certain
requirements of providing sufficient work for specified existing
employees represented by the union. (PX 1; J.R. Wolfe Aff. pp.
4. In July 1965 the union served upon the carrier under Section
6 of the Railway Labor Act (45 U.S.C. § 156) notices of proposed
changes in the parties' collective bargaining agreements
effective January 26, 1966 which would require a minimum crew
consist of one conductor and two brakemen on all the carriers'
crews in road and yard service. These crew consist notices were
substantially identical to notices served by the union at various
times in 1965 and 1966 upon most of the other railroads in the
United States. (PX 9, 10; Tr. 89, 226-227).
5. The carrier took the position that the foregoing notices of
the union were premature because they were served during the
period of the Award of Arbitration Board No. 282, and for this
reason the carrier declined to meet with the union in conference
to discuss these notices (Tr. 230; J.R. Wolfe Aff. p. 11).
Thereafter, on October 4, 1965, these notices were docketed for
mediation by the National Mediation Board (J.R. Wolfe Aff. p.
12), but no mediator was assigned to the dispute until May 15,
1969 (Tr. 272; J.R. Wolfe Aff. p. 30).
6. In Brotherhood of R.R. Trainmen v. Akron & Barberton B.R.R.,
128 U.S.App.D.C. 59, 385 F.2d 581, 596-598, 613-614 (1967), the
Court of Appeals for the District of Columbia Circuit held that
the carrier breached its duty to bargain under the Railway Labor
Act by refusing to discuss the union's notices in conference in
8. The parties met in conference on January 18, 1966 at which
time the carrier's notices were discussed, but the union declined
to discuss its notices concurrently with those of the carrier
(Tr. 231, 385, 403-4; J.R. Wolfe Aff. pp. 13-14).
9. At the time of the service of its notices in December of
1965 the carrier took the position that if the parties were
unable to resolve the crew consist dispute in conference, the
dispute should thereafter be negotiated together with the crew
consist disputes then pending between the union and most of the
other railroads in the United States in what is commonly called
"national handling" in the railroad industry. The union, however,
has consistently refused to engage in national handling of this
dispute, and instead has insisted upon negotiations with
individual railroads. (PX 12; J.E. Wolfe Aff. pp. 19, 38; J.R.
Wolfe Aff. pp. 13-14).
10. In the fall of 1966 the National Mediation Board terminated
its mediatory services under Section 5 of the Railway Labor Act
(45 U.S.C. § 155) with respect to the crew consist dispute
between the union and three other railroads. These railroads then
commenced an action in the United States District Court for the
District of Columbia to litigate the question of whether or not
the union could be required to negotiate the crew consist dispute
in national handling. Atlantic C.L.R.R. v. Brotherhood of R.R.
Trainmen, Civil Action No. 2908-66. In the District Court the
union took the position, and its officers testified, that varying
local conditions on each railroad made it necessary that the
matter of crew consist be negotiated locally on each railroad, so
that a local crew consist rule suitable to particular conditions
on each railroad could be established (J.E. Wolfe Aff. pp.
55-61). The District Court ruled in favor of the railroads,
holding that national handling of the crew consist dispute was
required. 262 F. Supp. 177 (D.D.C. 1967). The Court of Appeals for
the District of Columbia Circuit reversed, holding that differing
local conditions on each railroad made a national crew consist
rule "wholly unrealistic." 127 U.S.App.D.C. 298, 383 F.2d 225,
229 (1967). The Supreme Court denied certiorari in January of
1968 (389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839).
11. In March of 1968 the carrier invited the union to discuss
as a means of compromising the dispute an agreement that would
involve the payment of additional compensation to certain
employees of the carrier's crews who were represented by the
union — those employees who would work upon a crew having one,
rather than two, brakemen. The union refused to enter into
negotiations with respect to this proposal. The union's
negotiators were barred by the union's national convention from
making any agreement on crew consist such as the foregoing one
proposed by the carrier. (PX 13-14; J.R. Wolfe Aff. pp. 15-17;
Tr. 235-6, 408).
12. The parties held conferences at which defendant's crew
consist notices were discussed in March, May, June, July, and
August of 1968 (J.R. Wolfe Aff. pp. 17-21; Tr. 239-48). These
meetings were recessed subject to the call of the union for
further meetings (Tr. 254; J.R. Wolfe Aff. p. 21). The parties
agreed in October of 1968 and in January of 1969 to defer further
meetings to discuss the union's notices (J.R. Wolfe Aff. p. 21).
13. The parties resumed conferences in April of 1969, and the
union's notices were discussed in conferences during April and
May of 1969 (Tr. 255-71; J.R. Wolfe Aff. pp. 21-31). These
notices were also discussed by the parties at mediation sessions
held under the auspices of the National ...