Bangor & AR Co. v. Brotherhood of Loc. Fire. & Eng.

• Decision Date: 19 February 1971
• Docket Number: No. 24521-24524.,24521-24524.
• Parties: BANGOR AND AROOSTOOK RAILROAD COMPANY et al. v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant. BANGOR AND AROOSTOOK RAILROAD COMPANY et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

442 F.2d 812 (1971)

BANGOR AND AROOSTOOK RAILROAD COMPANY et al. v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant.

BANGOR AND AROOSTOOK RAILROAD COMPANY et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Appellants.

Nos. 24521-24524.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 1970.

Decided February 19, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard, Elliot C. Lichtman, Washington, D. C., Daniel H. Pollitt, Chapel Hill, N. C., and Isaac N. Groner, Washington, D. C., were on the brief, for appellant in Nos. 24,521 and 24,523 and appellee in Nos. 24,522 and 24,524.

Mr. Francis M. Shea, Washington, D. C., with whom Mr. Richard T. Conway, Washington, D. C., was on the brief, for appellees in Nos. 24,521 and 24,523 and appellants in Nos. 24,522 and 24,524.

Before DANAHER, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.

LEVENTHAL, Circuit Judge:

These appeals arise from an action by the Brotherhood of Railroad Firemen and Enginemen (BLFE) for damages sustained as a result of the carriers' wrongful blanking of fireman positions in the "full crew" states of Washington and Oregon.

General Background

The background of this case is set out in considerable measure in our Akron opinion, Brotherhood of Railroad Trainmen v. Akron & B.B.R.R., 128 U.S.App. D.C. 59, 385 F.2d 581 (1967), cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).

The 1950 National Diesel Agreement between the BLFE and the carriers provided for the employment of firemen on virtually all diesel-powered locomotives. In addition, several states, including Washington and Oregon, had so-called full crew laws which, among other things, specified that in defined circumstances the engine crew of locomotives must include a fireman. These laws were enacted before the advent of diesels, and generally contained no exemption for that type of locomotive.

The carriers proposed, and the BLFE resisted, the virtual elimination of firemen's jobs on freight and yard (but not passenger) service. When a national rail strike threatened, Congress in 1963 enacted Public Law 88-108, 77 Stat. 132, and established an independent board of arbitrators (Board No. 282) with authority over the manning dispute.

Award No. 282 relating to the use of firemen modified the National Diesel Agreement so as to allow the carriers to establish work rules dispensing with firemen positions in freight and yard service, by use of a procedure for carrier listing ("blanking") of the crews where firemen positions could be dispensed with, and BLFE retention, by veto, of 10% of the positions listed in each seniority district. During the period of the Award, more than 18,000 firemen were "pruned" from the ranks.

Although Award 282 was promulgated pursuant to Federal statute, the Supreme Court held that state full crew laws had not been pre-empted.¹ When Award 282 expired, on March 31, 1966, full crew laws were in effect in Oregon and Washington. The repeal of these laws was effective on January 1, 1967 in Oregon and December 9, 1966 in Washington. Both the BLFE and the Carriers filed suit for a declaration of their rights. The carriers claimed the Award's procedures continued in effect, after its expiration date, permitting them to eliminate firemen positions in the states subsequent to repeal of the full crew laws. The BLFE argued that once Award 282 expired, the National Diesel Agreement was restored to full force and effect, obligating the carriers to reinstate the positions eliminated under the Award.

In the District Court, Judge Holtzoff held that the carriers could discontinue the use of firemen on blankable runs, even after the Award's expiration, by failing to replace firemen who retired, died, or resigned. On the other hand, the carriers could no longer blank runs through "affirmative acts," i. e., could not separate any additional firemen from employment or offer comparable jobs as had been permitted under the Award as to firemen with less than ten years' seniority. Bangor & Aroostook R. R. v. BLF&E, 253 F.Supp. 682 (D.D.C.1966).

As to the repeal of full-crew laws in Washington and Oregon, Judge Holtzoff ruled that this would not permit the carriers to eliminate fireman positions affirmatively after the expiration of the Award, even though the full crew laws had prevented them from doing so during the period of the Award. "Since the effective period of the Award has expired, no affirmative steps may be taken under it. * * * The situation must be deemed frozen as of the close of the effective period of the Award." 253 F.Supp. at 687.

Again, however, the District Court distinguished a mere failure to fill vacant positions: "This is entirely different from the converse ruling that no vacancies occurring by attrition after the termination date need be filled. In other words, there is no right or duty to take any affirmative step under the Award on the part of either side after the crucial date." Id.

On appeal, in our Akron ruling, supra, this court modified the judgment of the District Court. We held:

"A carrier is not only prevented from taking `affirmative acts\' under the Award to reduce the use of firemen, as the District Court properly held, but also, if the carrier was required to keep a fireman on a particular crew as of the last day of the Award, it cannot thereafter change the work rule by discontinuing that position, except by agreement or in accordance with Section 6. The work rule that continues in force provides for a fireman on this crew, and that is not changed because the particular fireman on duty dies or retires." 128 U.S.App.D.C. at 89, 385 F.2d at 611.

We further held that the repeal of full crew laws in Washington and Oregon subsequent to the expiration of the Award did not permit the blanking of runs in those states, either affirmatively or through failure to fill positions vacated by attrition.² On May 29, 1968, after the Supreme Court had denied certiorari (390 U.S. 923, 88 S.Ct. 851) the District Court entered a new judgment which "reaffirmed and reentered" its May 12, 1966, judgment, as modified "by the opinions and judgment" of this court.

After attempting, unsuccessfully, to obtain further consideration from Board 282, the carriers sought from Judge Holtzoff a supplemental declaration that the full crew laws would operate to block Award 282 in full crew states only if these full crew laws were constitutional, and that if not, the carriers could blank runs in those states as though the full crew laws had never been passed. This issue was mooted, however, on November 18, 1968, when the Supreme Court affirmed the constitutionality of the Arkansas full crew law. BLF & E v. Chicago, R.I. & P.R.R., 393 U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968).

The Instant Dispute

The dispute arises from the fact that between the effective date of the Washington and Oregon full-crew repeals (December 9, 1966, and January 1, 1967), and the November 18, 1968, decision of the Supreme Court the carriers refused to fill fireman positions in those two states as they became vacant because of natural attrition. Mr. John P. Hiltz, Jr., Chairman of the National Labor Conference, estimates that the Great Northern blanked 49 positions in those states during that period; the Milwaukee, 39; Southern Pacific, 50; and Union Pacific, 45. (App. 27-28). Mr. Hiltz further estimates that the cost to the carriers in filling these positions would "amount to $150,000 or more per month in wages and other expenses." Id.

On September 16, 1968, the BLFE filed a motion for accounting and other appropriate relief. This motion sought, first, the names of firemen who would have been employed had the carriers filled positions in Washington and Oregon and an order requiring the carriers to pay these firemen their lost wages plus interest. Second, the motion sought an accounting of the total wages saved by the carriers as a result of these blankings, and an order requiring the carriers to pay this amount, less damages paid to individual firemen, to BLFE itself for distribution to the appropriate class of firemen, or for use to the benefit of firemen generally. Third, BLFE requested that the carriers be ordered to pay to it the amount of dues, assessments, initiation fees, and other payments which would have been paid to it were it not for the blankings. Fourth, the motion sought an order requiring the carriers to pay reasonable costs, including attorneys' fees arising out of the blankings. Fifth, and finally, BLFE requested the court to order the carriers to file with the court a report of the steps taken by them to ensure the employment of firemen in Washington and Oregon as required by previous court orders.

The District Court entered an opinion and order on May 21, 1970, 314 F.Supp. 352.³ It held, first, that the carriers had abolished jobs in Washington and Oregon in violation of this court's previous decision, and that they must "continue to use firemen as required by the National Diesel Agreement until changed by agreement of the parties or pursuant to Section 6 of the Railway Labor Act." The court also declared that if any fireman had been deprived of employment as a fireman by reason of illegal blanking, he was entitled to reinstatement and could present any claim for damages to an adjustment board pursuant to Section 3 of the Railway Labor Act. However, the court denied any recovery to BLFE itself, either for its attorneys' fees and loss of dues, etc., or for distribution to its members.

Finally, Judge Corcoran ruled that two carriers — the Spokane, Portland, and Seattle Railway...