Delaware & Hudson Ry. Co. v. United Transportation Union

• Decision Date: 31 May 1972
• Docket Number: Docket 72-1130.,No. 638,638
• Citation: 461 F.2d 671
• Parties: DELAWARE AND HUDSON RAILWAY COMPANY, Plaintiff-Appellee, v. UNITED TRANSPORTATION UNION et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

461 F.2d 671 (1972)

DELAWARE AND HUDSON RAILWAY COMPANY, Plaintiff-Appellee, v. UNITED TRANSPORTATION UNION et al., Defendants-Appellants.

No. 638, Docket 72-1130.

United States Court of Appeals, Second Circuit.

Argued April 12, 1972.

Decided May 31, 1972.

Homer E. Peters, Albany, N. Y. (McClung, Peters & Simon, Albany, N. Y., on the brief), for defendants-appellants.

John H. English, Albany, N. Y., for plaintiff-appellee.

Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.

PER CURIAM:

This appeal is from Judge Port's grant of a permanent injunction against appellant United Transportation Union (Union)¹ and its officers and members, prohibiting a strike or other concerted action against the Delaware and Hudson Railway Company (D & H)² in connection with a dispute that was submitted by the D & H to the National Railroad Adjustment Board (NRAB) on January 7, 1971, pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. The dispute arose in connection with the delivery of cars by the old Erie Railroad (Erie) to the D & H's Liberty Street and Patch Yards at Binghamton, New York.

Under a May 6, 1946, agreement between the D & H and the Union, certain designated Erie trains and "solid Erie trains of 40 cars or more" were to be delivered directly to the Patch Yard of appellee by the Erie's own crews, while "all other cars coming in on Erie trains" were to be left at the Liberty Street Yard and "delivered by D & H yard crews" to the Patch Yard. Since the 1960 merger between Erie and the Delaware, Lackawanna & Western Railroad (resulting in the Erie-Lackawanna Railroad), it has become increasingly difficult to apply the 1946 yard interchange agreement. Commingling of cars, consolidation of trains, and new schedules have complicated the task of identifying Erie cars and trains.

In March 1967 the Union served upon the D & H a "Section 6 Notice," pursuant to 45 U.S.C. § 156, setting forth intended changes in the working agreement between the parties. As a counterproposal, elimination of the 1946 yard interchange agreement was put forth by the D & H in its own Section 6 Notice. Following unproductive conferences between the parties the issues were submitted to the National Mediation Board (NMB), pursuant to 45 U.S.C. § 155. At this point, the issue was a "major dispute" within the Railway Labor Act, see Missouri-Illinois R. R. v Order of Ry. Conductors, 322 F.2d 793 (8th Cir. 1963), thus prohibiting the issuance of any injunction.

On September 11, 1970, the Union threatened the strike now enjoined, claiming that the D & H had by its conduct eliminated the 1946 yard agreement, thereby unlawfully changing the status quo of a matter before the NMB. The D & H thereupon immediately withdrew its counterproposal to eliminate the 1946 yard agreement, advised the Union accordingly, and promptly sought and obtained a temporary restraining order from the District Court for the Northern District of New York. A permanent injunction ultimately issued.

This appeal was essentially briefed on the question whether the appellee was estopped from treating this dispute as a "minor" one, since elimination of the 1946 yard agreement was included by the D & H in its Section 6 notice.³ Judge Port held—quite properly, we think—that neither the filing nor the withdrawing of the D & H's counterproposal to eliminate the 1946 yard agreement determined the nature of the dispute. In doing so he followed Judge Waterman's admonition, in Rutland Ry. Corp. v. Brotherhood of Locomotive Engineers, 307 F.2d 21, 33 (2d Cir. 1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963), that the label placed on a dispute by the contestants should not be given "undue emphasis." See also In re Hudson & Manhattan R. R., 172 F.Supp. 329 (S.D.N.Y.), aff'd sub nom. Stichman v. General Grievance Committee of the Brotherhood of R.R. Trainmen, 267 F.2d 941 (2d Cir. 1959) (per curiam), cert. denied, 363 U. S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). Since the resolution of the dispute required interpretation of the 1946 yard agreement, the court below also quite properly held that the dispute was a "minor" one under the Act. In re Hudson & Manhattan R.R., supra.

At oral argument the Union, apparently realizing that its legal position on the merits was derailed, made the main track of its argument a request for court permission allowing individual employees to file claims in respect to the alleged failure of the D & H to abide by the 1946 yard agreement. Such permission is sought for a period running at least from April 24, 1969, the date on which the Union wrote the D & H superintendent seeking the symbols of Erie-Lackawanna trains being delivered to the D & H at...