Atlanta & West Point R. Co. v. United Transportation Union

• Decision Date: 05 January 1970
• Docket Number: Civ. A. No. 13269.
• Parties: ATLANTA AND WEST POINT RAILROAD COMPANY and Western Railway of Alabama v. UNITED TRANSPORTATION UNION, an unincorporated labor union, and C. M. Cagle, 1999 Meador Avenue, S.E., Atlanta, Georgia, individually, and as representative of such class.
• Court: U.S. District Court — Northern District of Georgia

307 F. Supp. 1205

ATLANTA AND WEST POINT RAILROAD COMPANY and Western Railway of Alabama v. UNITED TRANSPORTATION UNION, an unincorporated labor union, and C. M. Cagle, 1999 Meador Avenue, S.E., Atlanta, Georgia, individually, and as representative of such class.

Civ. A. No. 13269.

United States District Court N. D. Georgia, Atlanta Division.

January 5, 1970.

Lamar W. Sizemore, and William H. Major, Heyman & Sizemore, Atlanta, Ga., for plaintiffs.

Hugh Gibert and Richard N. Hubert, Haas, Holland, Freeman, Levison & Gibert, Atlanta, Ga., for defendants.

ORDER

EDENFIELD, District Judge.

This action for injunctive relief was instituted on November 15, 1969, by Plaintiffs Atlanta and West Point Railroad Company and Western Railway of Alabama (hereinafter referred to collectively as A & W P) to enjoin the allegedly unlawful picketing and work stoppage which defendants on that day had instituted on the properties of plaintiffs and along the lines where plaintiffs' trains are operated. A temporary restraining order issued on November 15th was continued until December 4th by consent of the parties and following a hearing on that date was continued pending issuance of this court's ruling. Defendants' answer and counterclaim for injunctive relief against the carriers were filed on December 16, 1969.

Plaintiffs are carriers engaged in interstate commerce within the meaning of the Railway Labor Act (45 U.S.C. § 151 et seq.). Defendant United Transportation Union (UTU) is an unincorporated labor organization and is the recognized bargaining agent for firemen and certain other railway employees of both plaintiffs. Defendant Cagle is named as a defendant both individually and as a representative of those of plaintiffs' employees who are represented by the UTU.

The dispute between the parties centers around an apprentice-engineer program which the union proposed to the carriers in November 1965, pursuant to § 6 of the Railway Labor Act (45 U.S.C. § 156), and raises questions as to whether (1) the carriers' negotiation of a contract regarding an apprentice-engineer program with another union, after Defendant UTU's § 6 notice was filed, constituted a change in the status quo and therefore justified the use of self-help by defendants, and, if not, as to whether (2) either party's mere refusal to bargaining good faith, standing alone, would justify the use of self-help by the other party.

The record shows that there is an existing collective bargaining agreement which was entered into between plaintiffs and Defendant UTU's predecessor— the Brotherhood of Locomotive Firemen and Engineers (BLFE)—in 1957, and which provides for rates of pay, rules, regulations, and working conditions under which plaintiffs' firemen, hostlers, and hostler helpers are employed. Rule 37 of that agreement provides that firemen shall be afforded an opportunity for promotion to engineers after they have passed certain required examinations and have met certain prescribed conditions. The agreement was last amended in 1959, but in November 1965 the UTU served notice on plaintiffs of its desire to effect certain changes in the existing contract. The proposed changes were presented in the form of three § 6 notices, all of which were served on the same day, but the present controversy is concerned almost entirely with what is generally referred to as Notice No. 3, relating to the establishment of an apprentice-engineer training program.¹

The record shows further that during the summer of 1969 the union which represents plaintiffs' engineers, i. e., the Brotherhood of Locomotive Engineers (BLE), also served the carriers with a § 6 notice indicating a desire to bargain with regard to an apprentice-engineer training program and that plaintiffs and the BLE subsequently entered into a bargaining agreement based upon that union's proposal. Defendants now contend that by negotiating with the engineers plaintiffs have altered the status quo with respect to the firemen and thereby have violated § 2, Seventh, of the Railway Labor Act (45 U.S.C. § 152, Seventh), which provides that "No carrier * * * shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title i. e., § 6 of the Act." For the reasons set forth below, the court rejects that contention and finds that the carriers' actions in negotiating this contract do not constitute a violation of the Railway Labor Act.

There is at present no dispute regarding the bargainability of the subject matter contained in defendants' Notice No. 3, but plaintiffs correctly contend that the subject of an apprentice-engineer program is bargainable with both the BLE and the UTU² and that their contract with the BLE in no way affects either their ability or their desire to bargain with the UTU on the same subject matter. Having bargained with the engineers, plaintiffs are still free (and indeed have a duty) to bargain with the firemen. Although the apprenticeship agreement which plaintiffs have with the engineers makes certain provisions which would be applicable to firemen if they entered the program under that contract, it is conceivable that after bargaining between the carriers and firemen has taken place an entirely separate apprenticeship agreement will be set up to cover firemen who wish to become apprentices.³

Furthermore, to the extent that defendants allege that plaintiffs have changed future working conditions they have not brought themselves within either § 2, Seventh, of the Act or within any of the sections which set forth the status quo duties imposed by the Act when a major dispute is involved. Section 2, Seventh, is not among the latter provisions; it merely states one category of cases in which the major dispute provisions must be invoked. Detroit & Toledo Shore Line Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (Dec. 9, 1969),⁴ and it applies only to changes in existing agreements. The status quo duties, on the other hand, prevent changes in existing working conditions, whether they are covered by the existing agreement or not, once the major dispute machinery of the Railway Labor Act has been set into motion.⁵ Neither § 2 Seventh, nor any of the status quo sections (§§ 5, 6, or 10), is applicable unless the change complained of is a change in conditions which existed at the time the dispute arose, i. e., at the time the § 6 notice was served.

To the extent that they allege that plaintiffs' contract with the engineers changes the firemen's present work rules the defendants are in error. Even if the terms of the two contracts clearly conflicted, plaintiffs could not change the firemen's working conditions merely by entering into a contract (with another union) which purported to do so; the change of conditions would occur only if and when the carriers undertook to implement such changes with regard to the firemen. The firemen's interest in becoming engineers is protected by their existing bargaining agreement, Rule 37 of which provides that firemen shall be afforded an opportunity to be promoted to engineers. Despite the apprenticeship agreement which the carriers have negotiated with the engineers, the firemen are free to negotiate their own apprenticeship agreement with the carriers and need never enter the training program under the BLE—carrier agreement if they choose not to do so. There is no evidence whatever that the carriers have made any change in existing working conditions, and it necessarily follows that they have not violated the status quo.

With respect to the second question presented, i. e., the refusal to bargain, all parties agree that bargaining has not yet taken place with regard to the contract changes which were proposed in defendants' November 1965 Section 6 notices, and they also agree that this results from a refusal to bargain.⁶ The union, of course, contends that the carriers refused, while the carriers contend that the union refused.

Under the evidence presented the court concludes that at one time or another both refused. Thus although several conferences were held with regard to defendants' Notice No. 3, it is undisputed that at those meetings the merits of the union's proposal were never discussed; instead, the meetings were devoted to discussions as to whether the issue was a bargainable one and, if so, whether the bargaining conferences should simultaneously consider all of the union's proposals, and a counterproposal which the carriers had made, or whether the discussion should be confined to the changes proposed in the union's Notice No. 3. With respect to the positions taken by the respective parties during these conferences it also appears, and indeed is undisputed, that although the carriers initially took the position that the union's combination proposal of November 15, 1965, was "premature, unlawful, and non-bargainable," they later expressed willingness to begin preliminary discussions on the union's November 15th proposals.⁷ The carriers viewed all notices served by the union on November 15th as constituting a single § 6 notice and insisted upon their right to discuss concurrently both that notice and their own counter-proposal of January 1966. The union, on the other hand, viewed each notice as entirely independent of the others and refused to discuss them concurrently. This conflict was never resolved and the evidence shows that at least as early as February 22, 1966, Mr. T. F. Carr, General Chairman of the union's local Grievance Committee, stated in a letter to Mr. Bowie, the carriers' Director of Personnel, that conferences on the union's proposals had been terminated some time prior to that date and could not be reopened.

The union now contends, however, that the carriers have been in violation of the Railway Labor Act since November 1965 in that they have consistently refused to...