225 F.Supp. 11 (D.D.C. 1964), Civ. A. 2919-63, Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q. R. Co.

Docket Nº:Civ. A. 2919-63
Citation:225 F.Supp. 11
Party Name:Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q. R. Co.
Case Date:January 08, 1964
Court:United States District Courts, District of Columbia

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225 F.Supp. 11 (D.D.C. 1964)






UNION PACIFIC RAILROAD et al., Defendants.

Civ. A. Nos. 2919-63, 2921-63.

United States District Court, District of Columbia.

Jan. 8, 1964

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[Copyrighted Material Omitted]

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Lester P. Schoene, Washington, D.C., for plaintiffs in Civil Action No. 2919-63.

Max Malin, Washington, D.C., for plaintiff in Civil Action No. 2921-63.

Francis M. Shea, Washington, D.C., for defendant carriers.

John W. Douglas, Asst. Atty. Gen., Washington, D.C., for defendants Seward and Kennedy, and for the United States of America as intervening defendant.

HOLTZOFF, Distrist Judge.

These two actions are brought to impeach and set aside an award of a special arbitration board created under an act of Congress approved August 28, 1963, Public Law 88-108, 77 Stat. 132, in order to avoid a threatened nationwide railroad strike, which was then imminent. The function of the board was to arbitrate and make an award concerning two basic issues that were in controversy between the railroads and their staffs. The plaintiffs in these two actions are four organizations or brotherhoods composed

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of operating railroad employees. They are dissatisfied with the decision and seek to set it aside. Most of the defendants are railroads, all of which have accepted and acquiesced in the award. The remaining defendants are the chairman of the arbitration board and the Attorney General. The United States has intervened as an additional party defendant. As judicial review in this case must be limited to the administrative record and the Court is restricted to passing only on questions of law, the matter has been presented by cross motions for summary judgment.

The present dispute comprehends practically all the Class I railroads in the United States and their operating employees. It arises out of drastic and radical technological changes that have taken place in the transportation industry. Specifically, it is caused by the revolutionary advance consisting of the abandonment of steam power on railroads and the substitution of diesel engines. Principally, what is involved is the status of firemen on railroad locomotives. As their name indicates, their primary function on steam locomotives was to stoke the furnace and keep the fires burning underneath the boilers. They also performed another duty, namely, watching the road and the signals from the left side of the cab, as the engineer sat on the opposite side and made his observations from the righthand window. With the abandonment of steam power and the introduction of diesel engines, there were no longer any fires to keep burning or any furnaces to stoke. The question arose, 'What is to become of the fireman?' There is no dispute that they were still necessary on passenger trains in order to perform their secondary function and their status in passenger traffic is not involved in the present controversy. The railroads claimed, however, that they were no longer needed on freight trains, because the duty of watching the road from the left side could be performed by other employees. The railroad brotherhoods, on the other hand, took the position that because they rendered this vital service, firemen should be continued on freight trains. This controversy also comprehended engines operated in yard service. Approximately 30,000 employees were involved. Both sides agreed that as a matter of social justice and enlightened fairness to the men, especially those whose career had been lengthy, there should be no immediate large scale discharge of employees; that some degree of security be granted to them; and that the abolition of the jobs should be accomplished by some gradual process of attrition. Manifestly, the railroads felt a sense of moral responsibility to the veteran workers. Nevertheless it is quite evident that they also thought that there should be a reasonable limit to their generosity. The extent of the security and the groups of men to whom it should be extended, were in sharp dispute.

A second question in controversy was the composition of train crews. The railroads contended that as a result of modern improvements and innovations the size of many train crews could be substantially reduced. In addition, there were many other problems that divided the contending parties, that were of lesser magnitude and importance and are not involved in these actions.

In order to understand clearly the special legislation creating the arbitration board, it is desirable to recapitulate briefly the salient events that preceded its enactment. The status of firemen on freight trains and yard service had been disputed and discussed from the beginning of the shift from steam to diesel power. The controversy was brought to a head on November 2, 1959, when the carriers issued notices proposing the elimination of firemen in freight and yard service. As has already been stated, there was no desire or intention to do away with them on passenger trains. These notices also proposed the abrogation of regulations fixing the size of train crews. On September 7, 1960, the employees' organizations in turn served a series of notices containing counter-proposals, which, among other things, would

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have continued and even extended the use of firemen and would have required not less than one conductor and two trainmen in all train crews plus such additional persons as were required to assure maximum safety.

In an endeavor to adjust the differences between the parties and to settle the controversy, the President of the United States, in November, 1960, created a special commission, known as the Presidential Railroad Commission. This body, after a prolonged investigation and protracted and thorough study, submitted a report on February 26, 1962, containing a series of recommendations. The carrier members of the Commission accepted it although expressing some dissatisfaction. The members representing the employees dissented and rejected most of the proposals.

There followed a series of unsuccessful negotiations pursuant to the Railway Labor Act, in the hope of arriving at a peaceful and amicable settlement of the dispute. In a further effort to avert the strike, which might have resulted in an economic disaster, the President, on April 3, 1963, appointed an Emergency Board known as Emergency Board No. 154. On May 13, 1963, this board submitted a report making recommendations for an adjustment of the issues. The employees' organizations proved unwilling to accept them. Strenuous negotiations were resumed, in which the Secretary of Labor took an active part. On August 2, he submitted a memorandum, accompanied by a series of documents, enumerating and defining the various issues in controversy and endeavoring to indicate areas in which, in his judgment, there was the largest possibility of agreement. A suggested plan for a voluntary arbitration followed, but proved abortive. A strike was imminent. The country was confronted with a serious emergency. A nation-wide railroad strike would have been a calamity. Congress alone could avert the catastrophe. The national legislature was not found wanting. It expeditiously fashioned and invoked a drastic measure. As was said by Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 'While emergency does not create power, emergency may furnish the occasion for the exercise of power'. It promptly passed a Joint Resolution, which was approved by the President on August 28, 1963, Public Law 88-108, 77 Stat. 132. 1

This enactment expressly prohibited any strike (Section 1). It authorized the creation of an arbitration board to consist of seven members, two to be designated by each of the contending groups and three additional members to be selected by the other four. If the four failed to agree on the three neutral members, the latter were to be appointed by the President, and this is what happened. The President named the three neutral members, one of whom was elected chairman (Section 2).

The board directed to pass on two issues: the use of firemen on other than steam-powered locomotives; and the size and composition of train crews (Section 3). Thus, Congress, in effect, ordered a compulsory arbitration of these two basic differences. It provided that the arbitration should be conducted pursuant to Sections 7, 8, and 9 of the Railway Labor Act, 45 U.S.Code, §§ 157-159 (Section 4). The board was directed to conclude its labors within ninety days (Section 5). Its award was to be deposited in this Court and was to be binding on the parties (Section 4). It was not to become effective until sixty days after filing (Section 5).

In connection with the proceedings, Congress directed the Secretary of Labor to furnish to the board and the parties, copies of his statement of August 2, 1963, to which reference has already been made, and the accompanying papers. The board was required to incorporate in its decision any matters on which it 'finds' the parties were in agreement, to

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resolve the matters on which they were not in agreement and to give due consideration to those matters as to which they were in tentative agreement (Section 3). Section 7(a) of the statute set forth the standards and the criteria by which the board was to be...

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