Consolidated Rail v. BROTH. OF MAINT. OF WAY EMP.

• Decision Date: 04 April 1990
• Docket Number: Civ. A. No. 90-2194.
• Citation: 735 F. Supp. 1265
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: CONSOLIDATED RAIL CORPORATION v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al.

735 F. Supp. 1265

CONSOLIDATED RAIL CORPORATION v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al.

Civ. A. No. 90-2194.

United States District Court, E.D. Pennsylvania.

April 4, 1990.

Dennis J. Morikawa, Philadelphia, Pa., for plaintiff.

John O'B. Clarke, Jr., Washington, D.C., for defendants.

DECISION AND ORDER

VAN ANTWERPEN, District Judge.

This non-jury matter arises out of a suit by plaintiff seeking a preliminary injunction preventing a threatened strike by the defendant union. The plaintiff has brought suit under the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendants have filed a counterclaim seeking a declaratory judgment that, in essence, the plaintiff is negotiating in bad faith. After hearing argument from both sides on March 29, 1990, the court issued a temporary restraining order. The court also required that plaintiff post a $10,000.00 bond, which it has done. Both parties agreed that a further hearing should be held on Tuesday, April 3, 1990.

Consolidated Rail Corporation ("Conrail") brought this action to enjoin the Brotherhood of Maintenance of Way Employees ("BMWE Union"), its officers, representatives and members from engaging in or threatening to engage in any strike, picketing (other than informational picketing), patrolling, slow down, "sick-out" or other work stoppage against Conrail. Members of the BMWE Union maintain Conrail's track, bridges and some buildings. The employees of Conrail are represented by three "Federations" which are subdivisions of the National Union. Conrail was formed in 1976 out of seven bankrupt northeast railroads and now operates railroad freight service in the northeastern United States. If the BMWE Union strikes, it is expected that the other unions which serve Conrail would honor the BMWE Union's picket lines. This would shut down Conrail. Conrail and the BMWE Union have stipulated to the following facts, which we will explain in our discussion:

STIPULATED FACTS

1. If it were not for the court's intervention and issuance of injunctive relief, the BMWE Union would have authorized the Federations of the Brotherhood, which are charged with responsibility to represent employees of Conrail who are covered by collective bargaining agreements between Conrail and the BMWE Union, to take a strike action against Conrail on March 30, 1990. The situation that led to the BMWE Union's action has not been abated, and, thus, a strike action will be authorized if the injunction is lifted.

2. Conrail and the BMWE Union stipulate that a strike by the BMWE Union against Conrail should interrupt interstate rail commerce and cause Conrail to sustain lost revenues that will most likely not be recovered. Defendants do not dispute Conrail's assertion that a strike will cause Conrail irreparable harm.

3. On June 10, 1988, each of the three BMWE Union Federations representing Conrail employees served identical notices on Conrail pursuant to Section 6 of the Railway Labor Act. As set forth in Defendants' Exhibit 1.

4. On July 27, 1988, Conrail served a proposal on the three BMWE Union Federations on Conrail, and informed the BMWE Union that it had authorized the National Carriers' Conference Committee (NCCC) "to represent and act for it in negotiations with the BMWE Union insofar as Attachments A wages, and health and welfare and B Minimum Force and other rules are concerned." As set forth in Defendants' Exhibit 2.

5. On May 5, 1989, the BMWE Union invoked the mediatory services of the National Mediation Board to assist it in resolving its dispute with carriers represented by the NCCC; that dispute was docketed by the Board as National Mediation Board Case No. A-12252. In its request for mediation, the BMWE Union did not list Conrail as one of the carriers which were parties to the BMWE Union's national dispute. On May 12, 1989, the NCCC responded to the BMWE Union's request for mediation and stated that it "has also been authorized by Conrail to represent it in these national negotiations, in addition to the railroads listed in the BMWE Union's" application for mediation. The NCCC then added that: "In our view, the organization's invocation of mediation involving railroads represented by the NCCC includes Conrail. Alternatively, we invoke mediation on behalf of all railroads represented by the NCCC including Conrail ... in this dispute with the BMWE Union."

6. On May 16, 1989, the BMWE Union invoked the mediatory services of the National Mediation Board with respect to the disputes raised by the three Section 6 notices served on Conrail on June 10, 1988. On May 19, 1989, the National Mediation Board docketed that dispute as National Mediation Board Case No. A-12260, and asked Conrail to furnish the Board "with any statement it ... may care to make...." On May 25, 1989, Conrail responded to the Board's inquiry; a true and accurate copy of that response is Plaintiff's and Defendants' Joint Exhibit 6.

7. On April 2, 1990, the National Mediation Board, as its last act under Section 5 First of the Railway Labor Act in NMB Case No. A-12252, proffered arbitration in that case.

DISCUSSION

We will first review the history of this matter. On June 10, 1988, each of the three system federations of the BMWE Union served Conrail with identical Section 6 notices under the Railway Labor Act, containing proposed changes to the existing collective bargaining agreements. The Section 6 notices triggered collective bargaining obligations under the provision of the Railway Labor Act, 45 U.S.C. § 156. The changes proposed by the BMWE Union would have increased job security for BMWE Union members and enhanced certain health and safety benefits. They would also have had the effect of increasing Conrail's labor cost compared with the contracts now in effect.

On July 27, 1988, Conrail served the BMWE Union with its own Section 6 notice. That notice consisted of a one paragraph general statement of Conrail's goals and advised that it would present "more specific and detailed itemizations of the changes required ... as the discussions proceed." In connection with these notices, representatives of the BMWE Union and Conrail met on September 26, 1988, November 16, 1988, December 22, 1988, January 17, 1989, February 8, 1989, and February 24, 1989.

By letter dated March 8, 1989, C.L. Hopkins, Jr., who was designated by Conrail to serve as its negotiator, served the general chairmen of the BMWE Union with specific proposals to supplement Conrail's July 27 Section 6 notice. These proposals would have reduced some wage levels and benefits from the levels in the current agreement, and would have given Conrail greater flexibility in using BMWE Union members. A significant change was the proposed elimination of restrictions on giving work, now performed by BMWE Union members, to outside contractors. The net result of the proposed changes would be less compensation and employment for BMWE Union members, and labor costs for Conrail which would be lower than under the contract now in effect. The parties met thereafter on April 7, 1989, April 24, 1989 and May 9, 1989, but were unable to reach agreement on each others Section 6 proposals.

In response to the Conrail and BMWE Union Section 6 notices, on May 16, 1989, Geoffrey N. Zeh, President of the BMWE Union, wrote a letter to the National Mediation Board which requested mediation pursuant to Sections Five and Six of the Railway Labor Act, 45 U.S.C. §§ 155 and 156. The National Mediation Board docketed the matter as No. A-12260 and continues to have jurisdiction. The parties involved in this case are Conrail and the BMWE Union as representative of its Conrail Members. Since the Mediation Board took jurisdiction, only one mediation session was held, on October 2, 1989. No agreement was reached at that meeting.

In case No. A-12260 the BMWE Union has requested intensive negotiations, but Conrail has refused. In place of intense negotiations, Conrail has requested arbitration and mediation of all issues. Up until now, the BMWE Union has refused to arbitrate the job security issues. Although it has offered to arbitrate the other issues, Conrail has refused to separate the issues. The question of what, if any, issues are to be arbitrated has not yet been resolved.

Conrail and the BMWE Union agree that case No. A-12260 before the National Mediation Board is local in scope and covers all issues between Conrail and the BMWE Union. The BMWE Union, while alleging the bad faith of Conrail in both its negotiations with the BMWE Union and its corporate policies does not deny that case No. A-12260 which includes all issues, is still under the jurisdiction of the National Mediation Board.

Prior to its letter of May 16, 1989, the BMWE Union on May 5, 1989 wrote a letter to the National Mediation Board requesting mediation under sections five and six of the Railway Labor Act. The National Mediation Board docketed this case as No. A-12252 and will continue to have jurisdiction until the parties formally reject arbitration and the Board notifies them that mediation has failed. 45 U.S.C. § 155 First (b). This case is national in scope and includes many railroads and unions in the United States facing similar issues. By agreement of these unions and railroads, the National Mediation Board has proffered arbitration on April 2, 1990 in case No. A-12252. All these parties, including Conrail and the BMWE Union, agree that this proffer will be rejected. This will allow the National Mediation board to notify the President of the United States and seek creation of a Presidential Emergency Board under Section 10 of the Railway Labor Act, 45 U.S.C. § 160. Assuming the President of the United States takes this step, this Board could investigate the situation and report to the President, following which there is a thirty day cooling off, status quo, no strike period. Conrail maintains that this case includes them as a party and all issues between Conrail and the BMWE Union....