BUTTE, ANACONDA & PAC. RY. CO. v. BROTHERHOOD OF LF & E.

• Decision Date: 04 November 1958
• Docket Number: No. 633.,633.
• Citation: 168 F. Supp. 911
• Court: U.S. District Court — District of Montana
• Parties: BUTTE, ANACONDA & PACIFIC RAILWAY CO., a corporation, Plaintiff, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, a voluntary labor association; Frank W. Glass, individually and as Vice President of the Brotherhood of Locomotive Firemen and Enginemen; J. J. McCarvel, individually and as General Chairman of the Brotherhood of Locomotive Firemen and Enginemen; Brotherhood of Railroad Trainmen, a voluntary labor association; H. E. Nevala, individually and as Deputy President of the Brotherhood of Railroad Trainmen; and R. R. McLean, individually and as General Chairman of the Brotherhood of Railroad Trainmen, Defendants.

168 F. Supp. 911

BUTTE, ANACONDA & PACIFIC RAILWAY CO., a corporation, Plaintiff, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, a voluntary labor association; Frank W. Glass, individually and as Vice President of the Brotherhood of Locomotive Firemen and Enginemen; J. J. McCarvel, individually and as General Chairman of the Brotherhood of Locomotive Firemen and Enginemen; Brotherhood of Railroad Trainmen, a voluntary labor association; H. E. Nevala, individually and as Deputy President of the Brotherhood of Railroad Trainmen; and R. R. McLean, individually and as General Chairman of the Brotherhood of Railroad Trainmen, Defendants.

No. 633.

United States District Court D. Montana, Butte Division.

November 4, 1958.

William M. Kirkpatrick, P. L. MacDonald, R. Lewis Brown, Jr., and Joseph B. Woodlief, Butte, Mont., for the plaintiff.

David L. Holland and Edward J. Foley, Butte, Mont., and Harold C. Heiss, and Russell B. Day, Cleveland, Ohio, for the defendants.

MURRAY, Chief Judge.

This cause came on regularly to be heard on the 16th and 17th days of July, 1958, plaintiff appearing by and through its attorneys of record, P. L. MacDonald and R. Lewis Brown, Jr., and defendants appearing by and through their attorneys of record David L. Holland and Harold C. Heiss.

Evidence, both oral and documentary, was submitted and received, and the Court now being fully advised in the premises from the legal evidence introduced, the stipulations of the parties, the admissions in the pleadings, and the legal arguments, makes and orders filed its Findings of Fact and Conclusions of Law as follows:

Findings of Fact.

I.

That plaintiff is a railroad corporation duly organized and existing under the laws of the State of Montana, and as such operates a railroad in said State, hauling freight as a common carrier for hire and engaging in interstate commerce; that the Brotherhood of Locomotive Firemen and Enginemen is an unincorporated association of persons acting as a collective bargaining agent and the duly authorized representative of plaintiff's employees engaged in serving the plaintiff as engineers, helpers, firemen, motormen, hostlers and hostler helpers; that the defendant Frank W. Glass is an officer of said association, to-wit: an Alternate Vice President; that the defendant J. H. McCarvel is a local officer of said association, to-wit: its General Chairman on the plaintiff railway; that the defendant Brotherhood of Railroad Trainmen is an unincorporated association of persons acting as collective bargaining agent and the duly authorized representative of plaintiff's employees engaged in serving the plaintiff as conductors and brakemen; that the defendant H. F. Nevala is an officer of said association, to-wit: its Deputy President; that the defendant R. R. McLean is a local officer of said association, to-wit: its General Chairman on the plaintiff railway; that this is an action arising under the laws of the United States regulating commerce between the States; that the amount in controversy exceeds the sum of Three Thousand and no/100 Dollars ($3,000), exclusive of costs and interest.

II.

That plaintiff Butte, Anaconda & Pacific Railway Company is a wholly owned subsidiary of The Anaconda Company, both corporations are managed by the same staff of officers from the President down to and including the Secretary-Treasurer. All major policy decisions for the plaintiff, including those involving labor relations are made for it by its officers, who are also officers of The Anaconda Company, and in making such decisions the controlling consideration is the ultimate effect which the decisions will have on the profits earned by The Anaconda Company.

III.

That The Anaconda Company has owned and operated an open pit copper mine at Butte, Montana, known as the Berkeley Pit since sometime in 1956; that prior to March 14, 1958, the ores mined at said Berkeley Pit were loaded in plaintiff's ore cars at a loading yard near the said Berkeley Pit known as the old Berkeley Yard; that the work of loading and switching the ore cars in the old Berkeley Yard and between said Berkeley Yard and the West Butte Yard of the plaintiff was, prior to said March 14, 1958, performed by yard crews of the plaintiff, who were members of the defendant Brotherhoods, under the agreements hereinafter referred to; that the said ore cars, when loaded and assembled in the West Butte Yard by the yard crews of the plaintiff as aforesaid, were picked up at the West Butte Yard and moved to The Anaconda Company's smelter at Anaconda, Montana, by the main line crews of the plaintiff, who were also members of the defendant Brotherhoods.

IV.

That at all times material to this action there were collective agreements entered into by and between the plaintiff and the defendants, Brotherhood of Locomotive Firemen and Enginemen and Brotherhood of Railroad Trainmen, which agreements established the rates of pay, rules and working conditions for plaintiff's employees engaged in engine and train service and switching service; that under said agreements loading and switching of cars within a yard was to be performed by yard crews as distinguished from main line crews which handled trains outside of yards and on the main line of the plaintiff; that under said agreements said yard crews consisted of five men, to-wit: an engineer, fireman, conductor and two brakemen, and such was the make-up of the yard crews which prior to March 14, 1958, had been engaged in the work of loading and switching the cars in the old Berkeley Yard and moving the same to the West Butte Yard of the plaintiff.

V.

That prior to March 14, 1958, a new loading and switching yard commonly referred to as the new Berkeley Yard and located approximately 3,000 feet from the old Berkeley Yard was constructed by the plaintiff for The Anaconda Company, the cost thereof being borne by The Anaconda Company, and said yard was completed and ready for operation on March 14, 1958. That said new Berkeley Yard does not connect with either the West Butte Yard of the plaintiff or directly with the main line tracks of plaintiff, but trains of ore cars from the new Berkeley Yard are moved over 14 miles of Northern Pacific tracks to Durant, Montana, and thence on to and over the main line of the plaintiff to the smelter at Anaconda, Montana.

VI.

That on or about September 27, 1957, in contemplation of the completion and putting in operation of the new Berkeley Yard, the plaintiff served upon the defendant Brotherhoods a Section 6 notice under the Railway Labor Act, as amended, proposing an amendment of the aforesaid collective agreements to permit the loading of ore in the new Berkeley Yard with main line crews of the plaintiff rather than yard crews; that thereafter when the said Brotherhoods rejected said proposed amendment, the plaintiff served a second Section 6 notice under the Railway Labor Act, in which it was proposed that the existing agreements be amended to provide that the yard crews in the new Berkeley Yard consist of three men rather than five men, as provided in the existing agreements; that plaintiff offered to the defendant Brotherhoods and their members the work of loading ores in the new Berkeley Yard if the Brotherhoods would consent to the amendment of the existing agreements in either of the aspects proposed by the said Section 6 notices, but the Brotherhoods declined to agree to the amendment of the existing agreements in either respect.

VII.

That after the plaintiff and the defendant Brotherhoods failed to agree on the changes in the agreements proposed by the aforesaid two Section 6 notices, and on or about October 25, 1957, the defendant Brotherhoods invoked the mediation services of the National Mediation Board and the dispute between the Brotherhoods and the plaintiff, arising under the two Section 6 notices, was docketed by the Board as Mediation Case No. A-5623; a mediator was assigned to the case by the Board and a conference of the parties under the sponsorship of the mediator was held on January 15, 1958. The Brotherhoods continued to be unwilling to agree to the use of main line crews for switching operations or to the use of three-man switching crews. That then plaintiff informed the Brotherhoods that when the work of loading and switching the ore cars was transferred to the new Berkeley Yard, the work would be taken from the plaintiff's employees and would be performed by employees of The Anaconda Company.

VIII.

By letter dated January 17, 1958, the plaintiff notified the mediator and the defendant Brotherhoods that it was withdrawing the Section 6 notices that led to the dispute docketed as Mediation Case No. A-5623, with the understanding that this withdrawal would terminate the mediation proceedings. The Brotherhoods nevertheless maintained to the Mediation Board that a dispute necessitating mediation continued because of the plaintiff's announcement on January 15 that its employees would cease performing the loading and switching of Anaconda ore cars on the day that the new Berkeley Yard was ready for operation. The Board decided to resume active mediation of the dispute and accordingly advised the parties that conferences would begin on March 5th in Anaconda, Montana; the plaintiff challenged the Board's authority to resume mediation, refused to participate in conferences with the Brotherhoods, and disregarded the Board's request that it withhold making effective the proposed change in the manner of handling, by plaintiff's yard crews, the loading and switching of the ore cars so as to not provoke a strike by plaintiff's employees.

IX.

By letter dated March 7, 1958, plaintiff advised the Brotherhoods that the loading of ore cars in the new Berkeley Yard would commence shortly; that plaintiff's main line crews would move the trains of ore cars from the new Berkeley Yard over Northern Pacific tracks to Durant and on to Anaconda, and that the plaintiff did...