Southern Ry. Co. v. BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC., 17891

• Decision Date: 14 July 1964
• Docket Number: 18405.,No. 17891,17891
• Citation: 119 US App. DC 91,337 F.2d 127
• Parties: SOUTHERN RAILWAY COMPANY et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellee. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. SOUTHERN RAILWAY COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

119 US App. DC 91, 337 F.2d 127 (1964)

SOUTHERN RAILWAY COMPANY et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellee.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. SOUTHERN RAILWAY COMPANY et al., Appellees.

Nos. 17891, 18405.

United States Court of Appeals District of Columbia Circuit.

Argued December 9, 1963 and June 11, 1964.

Decided July 14, 1964.

COPYRIGHT MATERIAL OMITTED

Mr. Burton A. Zorn, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Thomas A. Flannery, Washington, D. C., was on the brief, for appellants in No. 17,891 and appellees in No. 18,405. Mr. Stephen A. Trimble, Washington, D. C., also entered an appearance for appellants in No. 17,891.

Mr. Milton Kramer, Washington, D. C., for appellee in No. 17,891 and appellant in No. 18,405.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit Judges.

No. 17,891

WASHINGTON, Circuit Judge.

This is an appeal from the issuance by the District Court of a mandatory injunction compelling the appellant railroads¹ to employ firemen on all locomotives until either the National Railroad Adjustment Board ("NRAB") construes the existing collective agreement, or "the agreement between the parties is modified in accordance with the Railway Labor Act." The opinion of the District Court, in support of its order, is reported at 217 F.Supp. 58 (1963).

I.

Background Facts: Both Southern and the Brotherhood of Locomotive Firemen and Enginemen ("the Union") were parties to the National Diesel Agreement of May 17, 1950, which provided that "A fireman, or a helper, taken from the seniority ranks of the firemen, shall be employed on all locomotives."² This provision has remained in effect since 1950 and is currently incorporated in the collective agreement of 1959.

In 1959, Southern began operating a few trains (five in July and two in December), using porters, brakemen, or other employees as firemen or helpers. Admittedly Southern hired no new firemen or helpers after 1959, and admittedly commencing in 1960 a number of trains each year have been run without a fireman or helper (or other employee serving as such) aboard the locomotive,³ because of attrition in the seniority ranks of firemen, and other reasons to be discussed.

On August 27, 1959, the Union complained to Southern of a shortage of firemen on two divisions of its rail system and requested that sufficient firemen be made available to comply with the contract. Southern admitted that there had been a shortage during the summer months, but stated that it was due to vacation schedules. Correspondence relating to the shortages was exchanged for several months.

Several conferences on the controversy were held during March, June, and July of 1960, at which the Union stated that its position was that Southern must hire new firemen for Diesel locomotives under the contract if there were none available from the seniority ranks of firemen. Southern stated that its position was that the contract required that it man its Diesels only with firemen who were available, i. e., currently in the seniority ranks. On July 21, 1960, the Union set a strike for July 26, 1960, but the strike was postponed when the National Mediation Board, at the request of Southern, docketed the case. Mediation was unsuccessful, and the Board terminated its jurisdiction with respect to this dispute (not before us in this case) on June 4, 1962, without proffer of arbitration.

In the meantime, on November 2, 1959, Southern, in conjunction with other railroads of the country, served upon the Union proposals pursuant to Section 6 of the Railway Labor Act.⁴ These proposals, if accepted, would, among other things, have permitted the railroads to operate their Diesel locomotives, when used in freight or yard service, without firemen. On October 17, 1960, Southern withdrew this Section 6 notice, thus withdrawing as of that date from the nation-wide negotiations held with respect to the notices of November 2, 1959, filed by other railroads.

The Matter Directly Involved in This Case: On September 7, 1960, the Union served notice under Section 6 of the Railway Labor Act proposing that agreements be negotiated providing for the make-up of train crews, and other matters not involved here. On September 16, 1960, Southern, not acting in concert with other railroads, served a new Section 6 notice on the Union, which stated in part:

"* * * this will constitute notice * * * of Carriers\' desire to revise existing agreements in accordance with the following proposals:

"A. Eliminate all agreements, rules, regulations, interpretations and practices, however established, which require the employment or use of a fireman (helper) on other than steam power in any class of service.

"B. Establish a rule to provide that Management shall have the unrestricted right, under all circumstances, to determine when and if a fireman (helper) shall be used on other than steam power in any class of service.

"C. The foregoing will be made applicable only through the process of attrition, i. e., through death, retirement, resignation or discharge. Men now holding seniority as fireman and/or engineer will continue to have all rights they have under the present Agreements, but hereafter Carriers will have no obligation to hire additional firemen (helpers) on other than steam power under any circumstances whatever." (Emphasis supplied.)

The parties failed to reach an agreement in meetings that were held in October 1960. On May 31, 1962, Southern invoked mediation as to its proposal and on August 14, 1962, the Board docketed the proposals of both the Union and Southern. The controversy is still pending before the Mediation Board, although mediation has been unsuccessful and has been recessed.

The present action was commenced by the Union in September 1962. In January 1963 the District Court denied the Union's motion for a preliminary injunction against Southern, and subsequently enjoined a threatened strike. On the next day, January 14, 1963, Southern submitted the controversy, insofar as it pertains to the proper interpretation of the existing contract, to the National Railroad Adjustment Board, where it is presently pending determination.

The District Court issued the injunction now under review on May 29, 1963. Although the court recognized that the dispute included a matter of contract interpretation properly to be settled by the NRAB and not by it, it held that this conclusion does not give either party the right to change the working practices which existed under the contract through the year 1959, and prior thereto, citing Section 6 of the Railway Labor Act (footnote 4, supra). It found that the practice prior to 1960 of operating Diesel locomotives with a fireman or helper aboard was a "working condition" within the meaning of Section 6, and said that Southern was "not entitled to act independently and effect a new interpretation" of the agreement "and thereby alter working conditions in contravention of Section 6 * * *." The court characterized its injunction as requiring "only a return to the status quo until the merits of the dispute are decided by the Board." It stated that:

"Here, the purpose of the Railway Labor Act would be subverted and the jurisdiction of the Adjustment Board would be avoided if the Court permitted the carrier to submit a Section 6 notice to change the working conditions and, prior thereto, institute a new interpretation of that portion of the agreement which is the subject of the Section 6 notice."

As already indicated, the District Court ordered its injunction to remain in effect, until either the NRAB made a determination as to the proper interpretation of the existing agreement between the parties, or until that agreement is modified in accordance with the Railway Labor Act. We read the injunction as providing that if the agreement is modified or changed in the manner provided by that Act, the injunction will terminate, even though NRAB has not decided the dispute as to the meaning of the old contract.

II.

The complaint before the District Court consisted of two "claims" (or counts). The "First Claim" sought an injunction against the violation of the existing agreement between the parties, allegedly requiring Southern to operate all trains and switching locomotives with a fireman or helper in the locomotive. The "Second Claim" sought an injunction because the Section 6 notice served by Southern, proposing to change the existing agreement with respect to use of firemen on locomotives, was still pending before the National Mediation Board and Section 6 of the Railway Labor Act prevented the change in working conditions involved in operating trains without firemen in such circumstances. We will discuss first the matter involved in the second claim.

It is clear that, if the Mediation Board had concluded the mediation proceedings and if the other statutory procedures (acceptance or rejection of arbitration and possible presidential intervention, see Section 5 First and 10 of the Act, 45 U.S.C. §§ 155 First and 160), had been exhausted, Southern if it desired to do so could initiate the contract changes it proposed and the Union could strike. Brotherhood of Locomotive Engineers v. B. & O. R. Co., 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759 (1963).⁵ But with mediation still pending and not finally concluded, it is equally clear that Southern could not initiate changes in working conditions, absent agreement, without violating Section 6 of the Act which specifically provides that working conditions shall not be altered by the carrier until the controversy has been finally acted upon by the Mediation Board. See footnote 4, supra. The matter involved in this claim, a Section 6 proposal to revise or change the agreement, is of course a "major" dispute.⁶

With respect to this "claim" (count) of the complaint, we think that the...