BROTHERHOOD OF LOC. FIRE. & ENG. v. ATCHISON, T. & SF RY. CO.
| Decision Date | 19 February 1971 |
| Docket Number | 23996.,No. 23995,23995 |
| Citation | 143 US App. DC 72,442 F.2d 794 |
| Parties | BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al. BANGOR AND AROOSTOOK RAILROAD COMPANY, et al., v. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard, Elliott C. Lichtman and Isaac N. Groner, Washington, D. C., were on the brief, for appellants.
Mr. Francis M. Shea, Washington, D. C., with whom Messrs. Richard T. Conway and James A. Wilcox, Washington, D. C., were on the brief, for appellees.
Before DANAHER, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
In these consolidated cases the ongoing strife between the railroads and the Brotherhood of Locomotive Firemen and Enginemen (BLFE), concerning the fireman manpower required to be employed in the movement of freight, has come to focus on the application of our 1967 Akron opinion "that any new runs created after Award 282 are subject to the National Diesel Agreement of 1950, and its requirement of a fireman on each engine crew." Brotherhood of Railroad Trainmen v. Akron & B.B. R. R., 128 U.S.App.D.C. 59, 89, 385 F.2d 581, 611 (1967), cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).
The carriers and the BLFE disagreed as to the consequence of our 1967 ruling and the ensuing judgment.1 For a time they negotiated upon a new national agreement concerning use of firemen but that proved fruitless. On September 17, 1968, the carriers filed a motion in District Court for supplemental relief, seeking judicial interpretation and approval of the carriers' view of our "new run" ruling. At the suggestion of District Judge Holtzoff a motion for clarification was filed by the carriers in this court on February 10, 1969.
A voluminous file developed in a modern day counterpart to the prolixities of common law pleading. The carriers' 50-page motion was accompanied by a 60-page affidavit, and some 107 pages of exhibits. The BLFE's 30-page "response" attached an affidavit of 9 pages, and appendices of 280 pages (many of these, however, consisting of single entries of railway system lists). The carriers filed a "reply" of 35 pages, supplemental affidavit of 24 pages and some 7 pages of exhibits. The BLFE "supplemental memorandum" was a modest 10 pages.
This court called for initial determination by the District Court in the first instance on "the interpretation and application of these opinions to the fact situations now presented."2 The District Court, with Judge Corcoran replacing the late Judge Holtzoff, was presented with the carriers' motion for supplemental relief and a new motion by BLFE for injunctive relief to compel the carriers to man certain runs with firemen in accordance with the BLFE interpretation. The District Court did not take evidence, but disposed of the matter on the basis of the memoranda, affidavits and exhibits that had been filed in this court with some supplementation, principally in the form of extensive oral argument. Its ruling adopted the position of the carriers.
The application of our "new run" ruling which appeared in our supplemental Akron opinion of July 31, 1967, requires a restatement of that ruling in its full background.
In our initial opinion of May 12, 1967, we broadly reviewed the impact of the work of the Board of Arbitration (Board 282) established pursuant to Public Law 88-108, 77 Stat. 132, passed on August 28, 1963. The Award of Board 282 established a procedure permitting the elimination of 90% of the firemen (helper) positions which the carriers considered an unnecessary overmanning. The BLFE contended that this Award was limited by § 4 of Public Law 88-108 to a life of "two years from the date the award takes effect," that on expiration of the Award in 1966 the work rules in effect on the carriers reverted to the work rules in effect prior to the passage in 1963 of Public Law 88-108. While we agreed that this contention had logic, we considered that the intention of Congress could not reasonably be taken to "obliterate not only the Award as a document with legal effect but also the physical facts that came into being during the 2-year period."3 We held:
Our ruling is that the work rules created by the Award constituted a new plateau that was not automatically eroded when the Award expired. The legal underpinning for our ruling is not the Joint Resolution, which expired after 180 days of life — except insofar as necessary to sanction the Award. The ruling is not based on the Award, which had only a 2-year life, or on any agreement of the parties. The predicate of our ruling is, simply, the force of the Railway Labor Act. Certain work rules were in force on January 24, 1966 (or March 30, 1966, in the case of the BLFE). The mandate of the Railway Labor Act requires that the work rules in effect on any particular day shall also be in effect the following day — beyond the power of either party to institute a unilateral modification — subject to change only in accordance with the procedures prescribed by the Act. * * * What we are in effect holding is that since Public Law 88-108 is silent as to the applicable legal rule, the case is governed by the combination of undeniable physical facts plus the general legal rule of the Railway Labor Act.4
We invited the parties to request supplemental rulings on any matters not explicitly covered by our original opinion. A question arose as to the status of the "blanking" procedure developed by Board 282 which we described as follows:5
On the firemen issue, Board 282 decided that most firemen could be dispensed with for other than steam power engines. It developed a procedure permitting the "blanking" of firemen positions as follows: Each carrier could list those engine crews on which it thought firemen unnecessary for reasons of safety or workload. These positions could then be blanked, except that each local union chairman was given the right within 30 days of receipt of the carrier\'s list to designate up to ten percent of these crews as requiring continued employment of firemen. The Award refers to this right to designation as based upon considerations of safety, undue work burden and adequate and safe service to the public, but provided that the designation shall not be subject to challenge or review. This procedure was designed to take place at three month intervals.
The BLFE contended the procedures expired with the Award. The carriers contended the procedures were part of the new plateau of work rules. The District Court held that under the "new plateau" the carriers could preserve what they had accomplished in reducing firemen's positions but could not use the machinery to make further job cuts; but that while the carriers could not take affirmative acts in reliance on the award they could refuse to fill vacancies resulting from attrition.
We held that the issue was as to the work rules resulting from the Award that endure by virtue of the Railway Act just as if incorporated into agreements. "We must therefore discern what `work rules' were put into effect under and prior to the expiration of Award."6 We concluded that the Award's blanking (and vetoing) procedure for making reductions was a procedure that expired with the Award and not a "work rule" that survived. "What survives is the complex of work rules in force on the last day prescribing the substantive terms that controlled the use of firemen on individual runs."7 We then set forth the consequence of our ruling in this language:8
The differences of opinion that arise with respect to our ruling may be grouped as follows: The carriers contend the Union may not claim there are new runs requiring application of the Diesel Agreement if the run involved does not represent an addition by the carrier causing the number of blanked runs to exceed the maximum number of runs that it listed for blanking during the life of the Award. Another broad issue is whether a run constitutes a "new run" if it was listed for blanking by the carrier during the Award but was thereafter removed, or disestablished, from the blanking list posted by the carrier for the period ending on the last day of the Award. The final issue concerns the degree of modification of a run, that was duly listed by the carrier under the Award and is governed by a work rule dispensing with firemen that endures after the Award, that may be permitted without constituting this as...
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UNITED TRANSPORTRATION U. v. Burlington Northern, Inc., 71-1382.
...fireman with the run terminable at will. In decisions which neither party here contests, Brotherhood L. F. & E. v. Atchison, Topeka and Santa Fe Ry. Co., 143 U.S.App.D.C. 72, 442 F.2d 794 (1971); Brotherhood of Railroad Trainmen v. Akron & B. B. R. R. Co., 128 U.S.App.D.C. 59, 385 F.2d 581 ......