385 F.2d 581 (D.C. Cir. 1967), 20152, Brotherhood of Railroad Trainmen v. Akron & B. B. R. Co.

Docket Nº:20152, 20158, 20172, 20191-20193, 20215, 20216, 20229, 20249.
Citation:385 F.2d 581
Party Name:BROTHERHOOD OF RAILROAD TRAINMEN, Switchmen's Union of North America, et al., Appellants, v. The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellees. ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN, Appellant, v. The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellees. The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellants, v. BROTHERH
Case Date:May 12, 1967
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 581

385 F.2d 581 (D.C. Cir. 1967)

BROTHERHOOD OF RAILROAD TRAINMEN, Switchmen's Union of North America, et al., Appellants,

v.

The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellees.

ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN, Appellant,

v.

The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellees.

The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellants,

v.

BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellees.

The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellants,

v.

ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN, Appellee.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY et al., Appellees.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant,

v.

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellees.

BANGOR AND AROOSTOOK RAILROAD COMPANY et al., Appellants,

v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellee.

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellants,

v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellee.

BROTHERHOOD OF RAILROAD TRAINMEN, Appellant,

v.

The AKRON & BARBERTON BELT RAILROAD COMPANY et al., Appellees (two cases).

Nos. 20152, 20158, 20172, 20191-20193, 20215, 20216, 20229, 20249.

United States Court of Appeals, District of Columbia Circuit.

May 12, 1967

Argued Sept. 28, 1966.

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Mr. Milton Kramer, Washington, D.C., with whom Mr. Martin W. Fingerhut, Washington, D.C., was on the brief, for appellants in Nos. 20, 152, 20, 229 and 20, 249 and appellees in No. 20, 172.

Mr. James D. Hill, Washington, D.C., for appellant in No. 20, 158 and appellee in No. 20, 191.

Mr. Joseph L. Rauh, Jr., Washington, D.C., with whom Messrs. John Silard, Daniel H. Pollitt, Isaac N. Groner, David Epstein and Stephen E. Moss, Washington, D.C., were on the brief, for appellant in Nos. 20, 192 and 20, 193 and appellee in Nos. 20, 215 and 20, 216.

Mr. Francis M. Shea, Washington, D.C., with whom Mr. Richard T. Conway, Washington, D.C., was on the brief for appellants in Nos. 20, 172, 20, 191, 20, 215 and 20, 216 and appellees in Nos. 20, 152, 20, 158, 20, 192, 20, 193, 20, 229 and 20, 249. Messrs. David Booth Beers and Ralph J. Moore, Jr., Washington, D.C., also entered appearances for appellants in Nos. 20, 215 and 20, 216.

Before DANAHER, Circuit Judge, BASTIAN, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

This opinion deals with a number of appeals and cross-appeals in the railroad work rules litigation.

It may help if at the outset we indicate generally the nature of our views, though their precise exposition and the complexity of the issues require a long opinion. Part I of this opinion reviews the history of the passage by Congress in 1963 of a law providing for compulsory arbitration of the work rules controversy with an Award of two years duration. In Part II we approve the conclusion of the District Court that the work rules in effect following the expiration of the Award in 1966 did not revert to the 1963 condition and that the new plateau of work rules, established for early 1966 by the Award, continued in effect unless changed in accordance with the Railway Labor Act. In Part III, reversing a ruling of the District Court, we hold that even prior to the expiration of the Award the carriers had a statutory duty to respond to notices of the unions and begin collective bargaining about the rules to become effective following the expiration of the Award. In Part IV we conclude, reversing the District Court, that the railroad companies violated their duty to bargain with the Firemen, on the notice relating to prospective work rules, and with the Trainmen. We affirm other aspects of the decree, albeit for reasons somewhat different from those of the District Court, since we conclude

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that the railroads had no statutory duty to bargain over either another notice served by the Firemen, which sought to undermine rights vested under the Award, or the early notice served by the Conductors.

I

Understanding of the issues will be aided by a historical review of the problem.

The phenomenal growth of railroads in the 19th century was accompanied by evolution of complementary employee organizations. Railroad workers were among the first to organize unions to present employee demands collectively. The Order of Railway Conductors was founded in 1868, the Brotherhood of Railroad Firemen and Enginemen in 1873, and the Brotherhood of Railroad Trainmen in 1883. Labor relations in the railroad sphere has been the subject of Congressional enactments, and is now governed essentially by the Railway Labor Act. 1

The last hundred years have also witnessed the evolution of an elaborate 'common law' embracing the relations of railroad management and labor. There exists a roughly defined system that is the product of long-established practices and understandings, collective bargaining agreements, court decisions and administrative orders. The system covers among other things the manning of trains and the assignment of tasks to employees. These principles and patterns of behavior are collectively denominated 'work rules.' 2 As the Supreme Court has aptly put it, the railroad industry with its complex of regulations is virtually a 'state within a state.' 3

Work rules concerning firemen date from the early days of the industry. Their initial chore was to select and load fuel into the wood-burning locomotive. The appearance in the late 1920's of the diesel engine spawned the problems that beset the industry to this day. The carriers consistently contended that the former loaders of wood were now merely dead wood. Yet beginning in 1933 the Brotherhood of Locomotive Firemen and Enginemen (hereafter BLFE) negotiated individual agreements with various carriers to preserve the continued status of firemen-helpers. The BLFE in 1937 joined with substantially all United States carriers in signing the National Diesel Agreement, providing for the employment of firemen-helpers on practically all diesel powered locomotives. Similar terms endured in subsequent contracts, including the Diesel Agreement of 1950.

While work rules retaining positions for firemen became thus established, the industry's quest for modernization resulted in almost one hundred percent diesel operation. In 1956 the carriers gave hint that intense competition from other modes of transport and the resulting financial pressure would no longer permit preservation of the ancient status. During negotiations on their proposal to give management the discretion to determine the employment of firemen the carriers withdrew this plan by agreeing to a three-year moratorium on such changes in work rules. But the die had been cast, and the carriers argued that the verdict of history and technology had come in, pronouncing railroad firemen extraneous members of a train crew. So too, they asserted, advanced technology and innovations would permit sharp reductions in the level of what is called the 'crew consist, ' specifically the number of brakemen needed for the safe operation of the train.

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It is against the backdrop of the always 'sensitive and touchy problem' 4 of overmanning and efforts to overcome it that we focus on the events more immediately leading up to these appeals. In 1959 the carriers served notices under Section 6 of the Railway Labor Act, 5 proposing the elimination of firemen from freight and yard service, and the abrogation of regulations fixing the size of train crews. The following year, 1960, the unions served a series of counter-proposals directed at continuing and even extending the use of firemen and at setting the crew consist level at not less than one conductor and two brakemen plus such additional trainmen as the assurance of maximum safety demanded.

Shortly thereafter, in an effort to aid in the adjustment of this dispute, President Eisenhower appointed a special Presidential Railroad Commission to study the various facets of the problem. This Commission issued its report and recommendations in 1962. In general the carriers accepted the findings, but the unions balked.

Meanwhile the lengthy procedures contemplated and mandated by the Railway Labor Act continued. Negotiations and mediation failed to bridge the gulf between the parties. The atmosphere of crisis heightened, for the Supreme Court ruled in March of 1963 that all the tools of the Act prescribed for the parties had been tried and found inadequate, and they were thus free to resort to self-help: that is, the unions could lawfully strike, or the carriers could unilaterally impose the new rules. 6

The last device in the statutory arsenal was invoked. Acting under Section 10 of the Railway Labor Act, 45 U.S.C. § 160, the President, on a finding by the National Mediation Board of the threat of deprivation of essential transportation services, convened an Emergency Board to make a prompt investigation and report. For thirty days following the rendition of such a report no party may take unilateral action. The investigation was made and the report was filed.

Once again the unions proved unwilling to accede to the recommendations of others. During July of 1963 a flurry of tense negotiations was spurred by the active intervention of President Kennedy and the participation of Secretary of Labor Wirtz. The unions rejected the President's proffer of the services of Justice Arthur Goldberg as arbitrator...

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