Rutland Ry. Corp. v. Brotherhood of Locomotive Eng.

• Decision Date: 17 November 1960
• Docket Number: Civ. A. No. 3070.
• Parties: RUTLAND RAILWAY CORPORATION v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen, Order of Railway Conductors and Brakemen et al.
• Court: U.S. District Court — District of Vermont

188 F. Supp. 721

RUTLAND RAILWAY CORPORATION v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen, Order of Railway Conductors and Brakemen et al.

Civ. A. No. 3070.

United States District Court D. Vermont.

October 26, 1960.

As Amended November 17, 1960.

COPYRIGHT MATERIAL OMITTED

Thomas W. Lynch, Gen. Counsel of Rutland Railway Corp., Rutland, Vt., Donald L. Wallace (of Clark, Carr & Ellis), New York City, for plaintiff.

Harold N. McLaughlin (of Hornbeck, Knachel, McLaughlin & Ritter), Cleveland, Ohio, Philip H. Hoff (of Black, Wilson & Hoff), Burlington, Vt., Donald W. Fisher (of Mulholland, Robie & Hickey), Toledo, Ohio, for defendants.

GIBSON, District Judge.

This is an action brought by the Rutland Railway Corporation against Brotherhood of Locomotive Engineers; Brotherhood of Locomotive Firemen and Enginemen; Brotherhood of Railroad Trainmen; Order of Railway Conductors and Brakemen—all unincorporated associations; and against certain named individuals as chairmen of units in these associations.

The complaint was filed in this Court on September 26, 1960, and seeks a mandatory injunction directing and permanently enjoining any of the defendants from continuing an alleged wrongful and illegal strike on the plaintiff's railroad; seeking an order that the defendants comply with the procedural requirements of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.; and for damage caused the plaintiff by this alleged unlawful strike.

The defendants filed an answer on October 17, 1960, taking their full twenty days in which to join issue. They also filed a counterclaim with their answer asking for a prohibitory injunction restraining the plaintiff from unilaterally placing into effect certain schedule changes posted by it on September 8, 1960, and directing the plaintiff to preserve the status quo with respect to the alleged proposed changes in working conditions.

Findings of Fact.

A hearing was held at Windsor commencing October 20, 1960. This Court finds the following facts:

The plaintiff operates a railroad in interstate commerce. One subdivision, hereinafter called the Ogdensburg subdivision, runs between Ogdensburg, New York, and Alburg, Vermont. This subdivision has stations at Ogdensburg, Norwood and Malone, New York, and at Alburg, Vermont. This subdivision runs generally east and west.

The main line subdivision runs generally north and south. It runs from Alburg, Vermont, through Burlington, Rutland, and into North Bennington, Vermont. It also has a Bellows Falls subdivision running between Rutland and Bellows Falls, Vermont.

The plaintiff has existing agreements with each of the Brotherhood defendants. Its basic agreement on rates of pay and rules with the Order of Railway Conductors and Brakemen, the Brotherhood of Railroad Trainmen, and Brotherhood of Locomotive Engineers became effective March 18, 1949. Its basic agreements with the Brotherhood of Locomotive Firemen and Enginemen became effective as to rules February 16, 1951, and as to rates of pay September 1, 1951. There have been several amendments to each of these basic agreements.

The year 1960 has been a poor one for the Rutland Railway. In its first eight months it had a decrease in money volume of better than $264,000 as compared to the first eight months of 1959. Its carload loss in these eight months was in excess of 5,300 cars of freight. Its loss for the month of July alone was in excess of $64,000.

This matter of loss of business and loss of income was discussed at a Directors meeting held at the end of May or early in June. Rearranged train schedules were then discussed as one means of cutting expenses. When June and July showed losses continuing, the management decided to cut off some freight trains and change its schedules.

Accordingly, on September 8, 1960, it posted notices which, in effect, abolished all existing trains on the Ogdensburg subdivision and created a new local freight daily running between Alburg and Ogdensburg and another daily local freight running between Ogdensburg and Alburg. The yard switchers at Alburg and Malone were to remain daily switchers. In effecting this change, the Railway abolished daily trains running between Alburg and Norwood and between Norwood and Alburg. Likewise it abolished a train leaving from Malone for Alburg, and returning, and a train leaving Malone for Ogdensburg, and returning.

On its main line subdivision it abolished a through daily freight train from Rutland to Alburg and Alburg to Rutland, leaving a daily local freight train each way between Alburg and Rutland.

On the Bellows Falls subdivision it abolished one through freight train running between Rutland and Bellows Falls, leaving one local freight train running between Rutland and Bellows Falls daily.

Actually, it reduced the number of train runs by two—from six to four—on the Ogdensburg subdivision. The effect of this was to reduce the number of employees on that subdivision from thirty to twenty.

Meanwhile, sometime in August, 1960, the defendant Brotherhoods, being desirous of increased pay, made this desire known to Management. When Management indicated it couldn't grant this, a negotiation on this was set up for August 30th and representatives of the International Brotherhoods arrived to participate in this negotiation.

At this meeting of August 30th, at which Management and the Brotherhoods were present, representatives of the Brotherhoods made their demands known. The President of the plaintiff corporation replied in substance that it was impossible to meet these demands because of the financial condition of the plaintiff but he suggested that if certain rules were changed, great savings would be effected and then pay increases might be feasible.

After considerable discussion, the following specifics were suggested by the plaintiff:

1. Eliminate all arbitraries.

2. Open closed yards—the only closed yard on this property is Rutland yard, closed to trainmen (yardmen).

3. Dovetail rosters each craft, Vermont and New York divisions.

4. Make provisions for operating road switchers.

5. Provide for operation of trains between assigned terminals so that wage payments will equal the miles run and/or an 8 hour day.

No meeting of the minds occurred and the conference broke up. On September 7, 1960, by letter, the General Chairman of Brotherhood of Railroad Trainmen served formal notice of the Brotherhood's desire to change the rates of pay and rules then in force. This letter was acknowledged by Management by letter dated September 12, 1960, agreeing in substance that the proposals contained in the letter of September 7th be referred to national handling together with Management's proposals of November 2, 1959.

By telegram received by the plaintiff the morning of September 14th, plaintiff was notified the Brotherhoods were to strike as of 12:01 a. m. September 16 because "carrier cancelling 1957 and 1959 agreements by bulletins and changing home terminals and running thru former terminal for certain local freight crews". The plaintiff answered the same day as follows:

"Urtel Date Advising `Withdrawal Of Employes Of Rutland Railway Represented By BLE ORC&B BRT And BLF&E Authorized As Of 12:01 AM Sept. 16, 1960 Account Carrier Cancelling 1957 And 1959 Agreements By Bulletins And Changing Home Terminals And Running Through Former Terminal For Certain Local Freight Crews If NMB Intervenes Or Proffers Services Strike Date Will Be Postponed Pending Mediatory Efforts Provided Carrier Observes Status Quo'. Rutland Railway Corporation Effective Sept. 17, 1960 Will Arrange Train Assignments To Conform To The Demands Of Traffic. The Change Is Not And Cannot Be Shown To Have Violated Any Rule Or Agreement As Alleged. No Agreement Has Been Violated And The Carrier Is Merely Exercising Its Right To Operate In An Economical Manner. Conferences On This Issue Have Not Been Held On The Property With The Organizations Herein Referred To. Carrier Respectfully Points Out That The NMB Is Without Authority To Direct Methods Of Operation When No Rule Has Been Violated. The Actions Of The BLE ORC&B BRT And BLF&E In Authorizing Withdrawal Of Employes Represented By Them As Of 12:01 AM Sept. 16, 1960 Is Regarded As Being Illegal And In Violation Of The Provisions Of The Railway Labor Act. Carrier Again Assures NMB Status Quo Being Observed In Mediation Case No. A Dash 6329 And Accordingly Has Not Changed Or Cancelled Nor Does It Intend To Change Or Cancel Agreements Pending Mediation Of Case No. A Dash 6329."

The Brotherhoods went on strike as scheduled.

There is another facet to this dispute. On November 2, 1959, the plaintiff caused to be served on the defendants what are known Sec. 6 notices under the Railway Labor Act. These are entitled "Basis of Pay and Assignment of Employees" and "Consist of Crews". These were referred by all parties for national handling. Defendants claim that by this notice, plaintiff seeks to eliminate all agreements which in any way

"* * * prohibit or impose restrictions on the right of the carrier to establish, move, consolidate or abolish crew terminals, * * *"

or

"* * * prohibit or provide penalties for running crews through established crew terminals * *"

and to conclude a new agreement that the carrier shall have the right to

"* * * establish, move, consolidate and abolish crew terminals * * * with the right to operate any such run * * * through established crew terminals * * *"

On November 30, 1959, a conference was held to discuss the meaning of these Sec. 6 notices. The General Chairman, Mr. Esposito, asked many questions as to these notices and wrote down his version of Management's answers thereto.

Conferences are still pending on these Sec. 6 notices.

However, on September 29, 1960, the plaintiff submitted its position on its schedule changes to the National Railroad Adjustment Board for adjudication. The Board has...