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CHICAGO AND N.W. RY. CO. v. UNITED TRANSP. U.

August 13, 1971

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, A CORPORATION, PLAINTIFF,
v.
UNITED TRANSPORTATION UNION, A VOLUNTARY ASSOCIATION, DEFENDANT.



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 law:

FINDINGS OF FACT

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 p. 2).

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. 5-11).

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 1965.

7. On December 24, 1965 the carrier served upon the union notices under Section 6 of the Railway Labor Act which proposed that the parties adopt a rule permitting the carrier to determine the size of all its crews unilaterally. Such a rule would permit the carrier to reduce the minimum size of mainline freight crews and certain other crews from two brakemen to one and permit the carrier to maintain the minimum size of other crews at a conductor and one brakeman. The carrier's crew consist notices were substantially identical to notices served by most of the other railroads in the United States at various times in 1965 and 1966 upon the union. The carrier's notices also requested that the parties meet in conference to discuss all their notices. (PX 12; J.E. Wolfe Aff. p. 19; Tr. 90, 102, 229).

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 ...


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