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CHICAGO & N.W. RY. v. UNITED TRANSPORTATION UNION

December 22, 1971

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, PLAINTIFF,
v.
UNITED TRANSPORTATION UNION, DEFENDANT.



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:

FINDINGS OF FACT

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 the CNW.

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. Px 12.

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.

13. On October 4, 1966 while the Akron & Barberton Belt case, was pending on appeal, the NMB terminated its jurisdiction of disputes between Atlantic Coast Line, Boston & Maine and Des Moines Union R. Co., (now a part of CNW) and the union which arose from notices served by and upon the union and those railroads in 1965 which were the same as those served by and upon CNW and the union (Dx 1, p. 13). The railroads sought a declaratory judgment that the union had violated Section 2, First of the Railway Labor Act by not having bargained in good faith and by refusing to agree to national handling of the disputes arising from the aforementioned notices. Dx 1, pp. 2-34. The District Court found in favor of the union on the question of good faith bargaining but held the union had violated Section 2, First of the Railway Labor Act by refusing to engage in national handling of the dispute.

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 the crews.

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 CNW.

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 ...


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