Norfolk & PBLR Co. v. Brotherhood of Rail. Train.

• Decision Date: 23 August 1957
• Docket Number: No. 7416.,7416.
• Citation: 248 F.2d 34
• Parties: NORFOLK and PORTSMOUTH BELT LINE RAILROAD COMPANY, Appellant, v. BROTHERHOOD OF RAILROAD TRAINMEN, LODGE NO. 514, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

248 F.2d 34 (1957)

NORFOLK and PORTSMOUTH BELT LINE RAILROAD COMPANY, Appellant, v. BROTHERHOOD OF RAILROAD TRAINMEN, LODGE NO. 514, et al., Appellees.

No. 7416.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1957.

Decided August 23, 1957.

Writ of Certiorari Denied January 6, 1958.

Thomas H. Willcox, Norfolk, Va. (Willcox, Cooke & Willcox, Norfolk, Va., on brief), for appellant.

Robert R. MacMillan, Norfolk, Va. (Breeden, Howard & MacMillan, Norfolk, Va., Wayland K. Sullivan, and Harold C. Heiss, Cleveland, Ohio, on brief), for appellees.

Before SOPER, SOBELOFF and HAYNSWORTH, Circuit Judges.

Writ of Certiorari Denied January 6, 1958. See 78 S.Ct. 343.

HAYNSWORTH, Circuit Judge.

The carrier, Norfolk and Portsmouth Belt Line Railroad Company, sought in the Circuit Court of the City of Norfolk, and obtained, a temporary injunction against the Brotherhoods representing the members of its train crews and certain of their officers. The temporary injunction proscribed any strike or work stoppage on the lines of the carrier pursuant to a strike notice which was to have become effective on September 26, 1956, and which arose out of a controversy regarding the establishment of a new point at which five of the carrier's thirty-four train crews would be required to report for duty. Upon removal of the cause to the District Court of the United States and after a full hearing upon the merits, the District Court ordered the temporary injunction dissolved, though, by supplemental order, the execution of the Court's judgment was suspended pending this appeal by the carrier.

The carrier is a switching terminal and belt line railroad exclusively serving a large number of industries in the Norfolk area. It has interchange facilities with nine other railroads in the area and some of those other railroads are dependent upon it for interchange of their traffic with others. The carrier is engaged in interstate commerce and is subject to the Railway Labor Act, 45 U.S. C.A. § 151 et seq. The defendants, the Brotherhoods, are the representatives of its train crews. The District Court found, and the record clearly establishes, that a work stoppage on the lines of the carrier would occasion irreparable damage to the carrier and to the public and would "substantially paralyze industry in the area involved."

The center of the carrier's lines is Berkley Yard, located in South Norfolk, Virginia. This is the largest classification yard of the company and from that yard branch lines run in several directions. One of them crosses the Southern Branch of the Elizabeth River to Portsmouth, Virginia, from which there are subordinate branches and yards, the principal yard in Portsmouth being known as Port Norfolk Yard. Another line runs from Berkley Yard northerly to terminals on the southern bank of the Eastern Branch of the Elizabeth River. Another of them runs eastwardly to a connection with the Virginian Railroad over the tracks of which, together with those of the Norfolk and Southern, the carrier has operating rights by use of which it serves industries in the City of Norfolk and by which it extends its lines all the way to Sewells Point on Hampton Roads north of the City of Norfolk. Yet another line, with subordinate branches, extends from Berkley Yard in a southerly direction a considerable distance along the Southern Branch of the Elizabeth River.

From 1897 until 1917, Port Norfolk Yard, in Portsmouth, was the sole point at which train crews reported for duty and were relieved. Facilities for servicing steam locomotives were maintained there and the maintenance and service necessities of those locomotives required that they be ordinarily returned to that yard at the end of each shift. In 1917 an additional point at which train crews reported and were relieved was established at Sewells Point. Prior to 1956, except for a short period in 1941-42, when Money Point Yard was a designated point for reporting and relief, Port Norfolk Yard and Sewells Point Yard were the only designated points at which train crews were required to report for duty or to be relieved from duty.

Prior to 1956, therefore, engine crews which were to work at Berkley Yard or out of Berkley Yard would report for duty at Port Norfolk Yard in Portsmouth, to which the locomotive had been brought for servicing. There they picked up the locomotive and would proceed over the lines of the carrier to Berkley Yard or to their other points of work assignment. This travel in the carrier's locomotive after having reported in was, of course, at the carrier's expense and all members of the train crew were on a pay status from the time of reporting in.

The contracts between the carrier and the Brotherhoods, representing members of its train crews, provided that the carrier should maintain certain locker room, shower, toilet and other facilities at each point at which operating employees were required to report or be relieved. Such facilities were maintained only at Port Norfolk Yard and Sewells Point Yard. Upon occasion, it was necessary that operations be substantially continuous in the yards of the Ford Plant and in the servicing of certain fertilizer plants. Upon those occasions, and when the locomotive could operate in those areas for the duration of two full shifts without being brought in for servicing, crews were relieved at the locomotive at those places. Since none of the requisite locker room, shower or other facilities were maintained at those places, however, they could not have been designated as points for reporting and relief. Consequently, when such "footboard relief" was being practiced, the relief crew would report in at Port Norfolk Yard, and would be transported by automobile to the place where the engine was working, while the relieved crew would be returned to Port Norfolk Yard by the same conveyance. In emergency, relief of crews working locomotives at other places was similarly handled.

The record, however, disclosed that there never was any custom or practice of providing transportation of train crews on a pay status to and from areas of their residence and any designated point for reporting and relief. On the contrary the record discloses that eight employees, residing in Portsmouth, were traveling on their own time and at their own expense all the way through South Norfolk and Norfolk to Sewells Point where they reported and were relieved. Conversely, eight other employees, residing in Norfolk or South Norfolk, were required to travel on their own time and at their own expense to Port Norfolk Yard in Portsmouth for reporting and relief.

As in substantially all of the contracts between railroads and Brotherhoods representing train crews, there was a provision in the applicable contracts here that there should be a designated point for going on duty and a designated point for going off duty. Each of the contracts further provides "the point of going on and off duty shall be governed by local conditions * * *."

Against this background, and upon the assumption that under the applicable agreements it had the right to establish additional points for reporting and relief so long as it provided the requisite facilities, the carrier in 1955 began to construct such facilities at Berkley Yard. It had decided to replace its steam locomotives with diesel locomotives. The diesel locomotives required less frequent servicing than steam locomotives, so that by establishing Berkley Yard as a point for reporting and relief for certain of its crews the carrier could provide substantially continuous service in and out of Berkley Yard without the interruption which would be occasioned by having to send locomotives to Port Norfolk Yard for servicing and exchange of the crews.

The interested Brotherhoods, observing the construction of the facilities at Berkley Yard, on November 25, 1955, addressed a letter to the carrier in which they expressed their position that the carrier could not designate Berkley Yard as a point for reporting and relief of any of the crews except with the consent of the Brotherhoods or by new agreements, requiring the assent of the Brotherhoods.

At the request of the carrier, representatives of the Brotherhoods met with the President of the carrier on February 10, 1956, at which time they were handed a letter, in which he referred to the provisions of the contracts and stated the position of the carrier that, under the applicable agreements, the designation of points for reporting and relief would be governed by local conditions in the light of operating requirements as determined in the sole discretion of management, that there was no restriction upon the carrier's right to establish additional points for reporting and relief and the exercise of that right was not dependent upon the prior consent of the Brotherhoods or the initiation by the carrier of any procedure under the Railway Labor Act. Consistent with its position that the matter, under the agreements, was subject to unilateral determination by the carrier, it declined to negotiate with the Brotherhoods.

On February 13, 1956, the Brotherhoods responded to the carrier's position with a letter in which they acknowledged the right of the carrier to move the point for reporting and relief within a locality, but denied that the carrier had the right, without their consent, to establish a point for reporting and relief in a locality in which no such designated point had previously existed. They reiterated their position that the carrier could not designate Berkley Yard as such a point without the conclusion, in advance of the change, of a new or supplemental agreement.

On the same day, the Brotherhoods sent a telegram to the Mediation Board:

"Serious situation existing on Norfolk and Portsmouth Belt Line Railroad as the result of Management arbitrarily moving terminal from Port Norfolk to Berkley a distance of approximately six miles without negotiating with

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