The opinion of the court was delivered by: Perry, District Judge.
MEMORANDUM OPINION AND DECREE
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:
2. Prior to January 1, 1969 the Brotherhood of Railroad
Trainmen was a voluntary union labor organization and the
representative under the Railway Labor Act of train and yard
service employees of some of the CNW and some of the other
railroads which were merged into and became districts of the
CNW; the Order of Railway Conductors & Brakemen was the
representative under the Railway Labor Act of some train
service employees of the CNW and other railroads which were
merged into the CNW and the Switchmen's Union of North America
was the representative under the Railway Labor Act of yard
service employees of railroads which were merged into the CNW.
Each of those labor organizations was represented on each such
railroad by separate General Chairmen and separate collective
agreements which existed between each such General Chairman
and each such railroad with respect to rates of pay, rules and
working conditions were retained after such railroads were
merged into and became districts of the CNW. On January 1,
1969 the Brotherhood of Railroad Trainmen, Order of Railway
Conductors & Brakemen and the Switchmen's Union of North
America were merged into and became a part of Defendant United
Transportation Union which became a party to each separate
collective agreement theretofore existing between the separate
railroads and the several labor organizations as the
representatives of employees of the CNW and the other
railroads which were merged into and have become districts of
3. The Award of Arbitration Board 282 which was made in
pursuance of Public Law 88-108, 45 U.S.C. § 157 (1971 Supp.)
became effective June 24, 1964 for a period of two years. It
prohibited changes in main line crews consisting of a conductor
and two trainmen in road service but did authorize changes in
main line crews consisting of a conductor and either more than
two or less than two trainmen. It also authorized changes in
branch line and yard crews irrespective of the number of
persons theretofore employed in such crews. Px 1, p. 14
paragraph A(2), A(3). It also provided for the arbitration of
disputes not resolved by agreement with respect to the number
of persons to be employed in crews in which changes were
authorized in accordance with certain specified guide lines;
one of which was "practices regarding the consist of crews in
comparable situations where such practices are not in dispute".
Px 1, pp. 15-19. It also provided for protection of the
employment of certain persons. Px 1, 19-20.
4. The CNW employs a total of 808 crews; 245 in main line
service, passenger, or through freight service; 165 in branch
line or local or way freight service and 398 in yard service.
The Award of Arbitration Board 282 did not authorize any
reduction in the 245 main line crews, although it did
authorize changes in the branch line and yard crews, 67 main
line crews, 52 branch line crews and 102 yard crews for a
total of 221 crews were not subject to reduction under the law
of Wisconsin. Thus, at the commencement of the dispute
involved in this case there were a total of 587 crews employed
by CNW outside the State of Wisconsin; 178 in main line
passenger or through freight service, 113 in branch line or
way freight service and 296 in yard service.
5. Under the Award of Arbitration Board 282 CNW had obtained
authority to employ a conductor and less than two trainmen in
72 out of a total of 113 branch line or way freight and local
service which were employed outside the State of Wisconsin and
to reduce to a foreman and less than two helpers 143 out of a
total of 296 yard crews employed outside the State of
Wisconsin, or a total of 215 crews and yard crews which were
employed outside the State of Wisconsin. Tr. 220-224, 258,
289, 326-327, 353, 368, S.Tr. 226-233.
6. In July 1965 in pursuance of Section 6 of the Railway
Labor Act the Union served on the CNW notice of its desire for
an agreement to become effective on January 25, 1966, the day
following the expiration of the Award of Arbitration Board
282, to provide for a minimum crew consist of not less than a
conductor and two or in some instances three trainmen in all
road service and of not less than a foreman and two helpers in
yard service. Px 9, 10, Tr. 89, 226-227.
7. CNW refused to meet, confer, discuss or negotiate with
the Union with respect to the Union's notices, on the ground
they were legally ineffective, (J.R. Wolfe Aff. p. 11, Tr.
230,) after which, on October 4, 1965 the National Mediation
Board, hereinafter "NMB", assumed jurisdiction of the dispute
arising from the Union's notices, J.R. Wolfe Aff. p. 12.
8. On December 24, 1965 in pursuance of Section 6 of the
Railway Labor Act, CNW served notice on the union of its
desire for an agreement for CNW to have the unrestricted right
to determine when and if trainmen should be used in each crew
in road and yard service and if used, the number and
classification of employees to be used and for the elimination
of all contrary agreements, rules, regulations and practices.
9. CNW also proposed that if no agreement should be reached
that the dispute arising from the union's July 1965 and CNW's
December 1965 notices be referred by the unions'
representatives on the CNW to a committee to be established by
the union to handle those notices concurrently with other
notices served by the union and by other railroads on the
union for further handling on a national basis with a
committee representing the railroads. Px 12.
10. The unions' representatives on the CNW met with
representatives on CNW on January 18, 1966, discussed CNW's
notice but declined to discuss the union's notice concurrently
with and declined to agree to refer the dispute to a national
committee to be handled on a national basis concurrently with
committees representing the CNW and other railroads which had
served the same notice on the union in December 1965.
11. Thereafter, at the request of CNW, the NMB assumed
jurisdiction of the dispute arising from CNW's December 1965
notice as it did of disputes arising from notices served by
other railroads on the union in December 1965.
12. The positions of the parties became the subject of
litigation in Akron & Barberton Belt R. Co., et al v.
Brotherhood of Railroad Trainmen, 250 F. Supp. 691 (D.C., Mar.
3, 1966); 252 F. Supp. 207 (D.C., Mar. 28, 1966); 254 F. Supp. 306
(D.C., May 19, 1966) and Akron & Barberton Belt R. Co. v.
Order of Railway Conductors & Brakemen, 253 F. Supp. 538 (D.C.,
April 19, 1966) in which CNW was a party plaintiff, for a
declaratory judgment that the union's July 1965 notices were
legally ineffective because they were served during the period
the Award of Arbitration Board 282 was in effect and for an
injunction against a strike by the union over the dispute
arising from its notices.
14. On May 12, 1967 the United States Court of Appeals for
the District of Columbia Circuit decided the Akron & Barberton
Belt cases (128 U.S.App.D.C. 59, 385 F.2d 581), reversed the
decision of the District Court that the union's 1965 notice was
legally ineffective because served on the railroads during the
period the Award of Arbitration Board 282 was in effect; held
that the union's notices were legally effective to impose upon
the railroads their duty to bargain under Section 2 First of
the Railway Labor Act and that the railroads, including the
CNW, by refusing to enter into negotiations with the union on
the union's 1965 notices, "had breached their statutory duty
under the Railway Labor Act to confer and bargain"; that CNW
and the other railroads had forsaken their right to insist on
conferences and that the dispute properly had been advanced to
mediation. (385 F.2d at 592, 594-598, 599).
15. On September 6, 1967 the United States Court of Appeals
for the D.C. Circuit decided the Atlantic Coast Line case
[Brotherhood of Railroad Trainmen v. Atlantic Coast Line
Railroad Co.], 127 U.S.App.D.C. 298, 383 F.2d 225 reversed the
decision of the District Court, held the union did not violate
any duty under the Railway Labor Act by refusing to agree to
national handling of the crew consist dispute arising from
notices served in 1965 by the union on some 80 railroads and
the counter-notices served on the union by those 80 railroads.
(383 F.2d at 226, 228-230).
16. In January 1968 the Supreme Court denied petitions by
the railroads for writs of certiorari in the Atlantic Coast
Line case, [Atlantic Coast Line Railroad v. Brotherhood of
Railroad Trainmen] 389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839
and in the Akron & Barberton Belt case, [Akron & Barberton Belt
Railroad Co. v. Brotherhood of Railroad Trainmen] 390, U.S.
923, 88 S.Ct. 852, 19 L.Ed.2d 983.
17. In January 1965, before the dispute in this case arose,
the former Brotherhood of Railroad Trainmen, hereinafter
referred to as "BRT", made an agreement with the New York
Central, the Pennsylvania R. Co., and the Erie-Lackawanna
Railroads and their subsidiaries with respect to crew consist
which came to be known as the Luna-Saunders Agreement. It
provided for a minimum crew of a conductor, two trainmen in
road service and a foreman and two helpers in yard service and
for crews of a conductor and less than two trainmen in road
service or a foreman and less than two helpers in yard service
which had been so established prior to January 24, 1964 to
continue as such. Dx 1, pp. 213-215, 226-227, 402-406.
18. On March 22, 1965, the union made an agreement with the
B & O R. Co., and its subsidiaries which came to be known as
the Luna-Touhy Agreement. It was substantially the same as the
Luna-Saunders agreement. Dx 4, tab 2.
19. On August 11, 1966, the Reading R. Co., and the former
BRT made an agreement resolving the crew consist dispute which
arose from notices served by and upon the union and that
railroad in 1965 which were the same as the notices served in
1965 by and upon the union and CNW and other railroads. That
agreement, like the Luna-Saunders agreement provided for all
road and yard crews to consist of a minimum of a conductor or
foreman and two trainmen or helpers and for crews established
at less than that number prior to January 25, 1964 to continue
as so established. Dx 1, pp. 267, 422-425.
20. On September 16, 1967 the Southern Pacific Company made
an agreement with the former BRT to establish a minimum crew
consist in road service of a conductor and not less than two
trainmen. Dx 4, tab 4.
21. On March 19, 1968 the President of the BRT met with the
President and Chairman of the Board of CNW and discussed the
crew consist dispute. The result of the meeting was an
agreement for the parties to study the crews which had been
working with less than a conductor and only one trainman in
road service and a foreman and one helper in yard service and
for the CNW Vice President of Personnel James R. Wolfe to meet
with the union's general chairmen in May, June, July and
August to try to settle the dispute. Tr. 239-40
22. In March 1968 an agreement which became known as the
"Jacksonville Agreement" was made by the union with the
Missouri Pacific Railroad Company, the Seaboard Coast Line
Railroad Company and the Southern Railway Company with respect
to the crew consist dispute. That agreement provided for the
railroads to select 50% of the crews which had been reduced to
less than two trainmen in road service and two helpers in yard
service, immediately to be increased to a minimum of two
trainmen and two helpers and for the remaining 50% to be
subject to negotiation and if no agreement should be reached,
for the dispute to be referred to the Presidents of the union
and the railroads and if not resolved by them for the parties
to revert to their self-help positions. Px 4, tab 5. A final
agreement was reached without the dispute being referred to
the Presidents of the union or of any of the railroads. Px 4,
tabs 8, 10, 11, 12, 13 and 14.
23. Other final agreements were made resolving the crew
consist dispute arising from the 1965 notices between the GM
& O R. Co., on February 22, 1968 and the Union Pacific on
March 1, 1968.
24. There were no negotiations between CNW and the unions
representing its employees with respect to the merits of the
crew consist dispute arising from their 1965 notices from the
time the union's notice was served in July 1965 until May 16,
1968. Tr. 239-242
25. On March 8, 1968 CNW sent a letter to the union's
representatives and to all of its train service employees on
March 13, 1968 proposing an agreement for CNW to retain the
authority it had obtained pursuant to the Award of Board 282
to man 215 crews with less than two trainmen in road service
and two helpers in yard service and pay an additional $3.45 to
each employee who worked in such a reduced crew. Px 14, 15.
The union's representatives rejected the proposal as contrary
to the policy of the union to substitute money for a safe crew
complement, Px 13, which was in accordance with the policy
adopted by the former BRT prior to its merger into UTU on
January 1, 1969 which was confirmed by the President of the
former BRT in his testimony in the Atlantic Coast Line case,
Dx 1, pp. 161-165, 227, 376-377, 416-417 and in his testimony
in Louisville & Nashville R. Co. v. United Transportation
Union (J.R. Wolfe aff. p. 17).
26. The Constitution of the UTU into which the BRT was
merged on January 1, 1969 contained no restrictions and there
were no directives restricting the consideration of money in
the resolution of the crew consist dispute. S.Tr. 251, 295-299
27. Representatives of the union and CNW met on six
occasions, on May 16, June 12, June 20, July 17, August 6, and
August 8, 1968 during which they discussed yard crews on the
basis of studies made by CNW. At their last meeting in which
the union's Vice President Tuffley participated, the union
urged resolution of the dispute on the basis of agreements
made on other railroads which was rejected by CNW which
insisted upon resolution of the dispute on the basis of a
study of each individual crew, Tr. 247, and that there had
been no discussion of main line or branch line crews which the
CNW desired to reduce under its notice of December 1965.
28. The union's Vice President then suggested calling in the
National Mediation Board, hereinafter "NMB", Tr. 248.
29. The next day Maloney told Wolfe over the telephone that
road jobs should be discussed before calling in the NMB and he
would call Wolfe for further conference.
30. There were no further conferences between CNW and the
union until April 22, 1969 because the union had struck the
Belt Railway of Chicago over the crew consist dispute; Wolfe
was engaged in negotiating agreements incident to the merger
of the Chicago Great Western into the CNW; the union had
called a strike against the Louisville & Nashville R. Co.,
over the crew consist dispute and the President had appointed
an Emergency Board to investigate the crew consist dispute
between the union and the Belt Railway; the Louisville &
Nashville R. Co., and the Illinois Central R. Co. Wolfe and
Maloney agreed to postpone further conferences until after the
Emergency Board made its report. J.R. Wolfe Aff. 18-21. Tr.
240, 242-249, 254-255.
31. On April 14, 1969, the day after the Illinois Central
had made an agreement with the union, Maloney called Wolfe for
further conferences saying the President of the union was
after him to get moving and they agreed to meet April 22,
1969. J.R. Wolfe Aff. 21, Tr. 255.
32. CNW and the union met on April 22 and 30, May 9 and 15,
1969, on which latter date they received notice a NMB mediator
would arrive June 2, 1969 to commence mediation of the
dispute. During those meetings the union's representative told
the CNW it was the last railroad with which the crew consist
dispute existed and the union's President was "champing at the
bit" for a settlement to be made. The union urged an agreement
similar to agreements made by other railroads, particularly
those made by other railroads operating alongside the CNW. The
CNW took the position that all CNW crews had not been
discussed with union representatives on districts other than
the CNW Proper. The union's representatives on all the other
CNW districts were called in and took the same position
— that there was no need for a discussion of every CNW crew in
view of the precedent set by agreements other railroads had
made with the union, particularly those operating in the same
terminals and same areas as the CNW but would be agreeable to
variations elsewhere. J.R. Wolfe Aff. 24-25, 28-29; Tr.
260-261, 263, 267, 270-272.
33. In December 1969, CNW was familiar with agreements
between the union by other railroads operating in the same
place and alongside the CNW and considered that those
agreements established a same general rule of returning 90% of
the crews, consisting of a conductor and one trainman in road
service and a foreman and one helper in yard service to two
trainmen and two helpers and that all of the agreements
established a national pattern of between 93 and 100% of the
crews which were reduced to one trainman in road service and
one helper in yard service being increased to crews consisting
of two trainmen and two helpers. Tr. 345-347.
34. On June 2, 1969 Arthur Glover, a veteran mediator of the
NMB commenced efforts to mediate the dispute. He first met
with CNW's Vice President, J.R. Wolfe and reviewed the
negotiations. Wolfe told him the union had taken the position
in the Atlantic Coast Line case that the crew consist dispute
should be settled on each railroad because of the differences
in climate, terrain, hills, curves, etc., but the union had
refused to discuss those matters and was insisting on
increasing all crews reduced by CNW to a conductor and one
trainman in road service and to a foreman and one helper in
yard service by adding an additional trainman and/or helper on
the ground that other railroads had made such agreements.
36. Representatives of the CNW and the union met with
Mediator Glover on June 4, 1969. At Glover's request CNW
stated the reason for the two week recess it desired for crew
studies was to try to show the union why it should not insist
on increasing the reduced crews based on what other railroads
had done. The union took the position that the studies would
not help in reaching an agreement. Wolfe was cognizant that
even with a time and motion study of a particular crew there
could be a basis for a difference of opinion whether the crew
should consist of two trainmen or only one in road service and
of two helpers or only one in yard service (Tr. 332-3). The
union took the position that it would continue to insist on
agreements which other railroads had made without crew
studies, particularly agreements such as had been made by
railroads operating in the same terminals and alongside the
CNW, such as the agreement which the Great Northern &
Milwaukee had made. However, the union agreed to the recess
desired by CNW to make its crew studies. Tr. 275-278.
37. The CNW and Union representatives next met on June 18,
1969 with two Mediators — Glover and Willetts. CNW had
completed its studies of 45 of the 50 crews. The union was
aware of the crews which CNW had studied but again questioned
the worth of the studies in view of what agreements other
railroads had made. The union then submitted a written proposal
which its representatives stated was based on its own study of
38. The union's proposal (PX 16) was for main line local
freight crews to consist of a minimum of a conductor and three
trainmen; for other main line freight crews to consist of a
minimum of a conductor and two trainmen; for yard crews to
consist of a foreman and two helpers and for suburban
passenger crews to consist of a minimum of a conductor and one
trainman on trains of three or less cars and a conductor and
two trainmen on trains of four or more cars, which was
considered to conform to a national pattern of increasing 98%
of crews in which only a trainman or helper had been employed
to two trainmen or two helpers. (J.R. Wolfe Aff. 33, Tr.
280-282, 285-286). The Mediators then asked for a proposal by
39. The CNW submitted its first written proposal to the
union pursuant to the suggestion of the Mediators, on June 20,
1969. It was for a continuation of the authority CNW had
obtained pursuant to the Award of Arbitration Board 282 to
employ a foreman and one helper to be continued in yard and
branch line crews, except for five yard crews in which a
minimum of a foreman and two helpers would be required and
crews employed on three branch lines would be a minimum of a
conductor and two trainmen; that 63 yard crews in which two
helpers had been employed be reduced to a minimum of a foreman
and one helper; that the crews on 30 way freight or switch run
crews, which had consisted of a conductor and two trainmen be
reduced to a ...