Erie Lackawanna Ry. Co. v. LIGHTER CAPTAINS U., LOC. 996

• Decision Date: 27 January 1972
• Docket Number: and 5-72.,Civ. A. No. 1945-71 to 1947-71
• Parties: ERIE LACKAWANNA RAILWAY COMPANY, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, I. L. A., et al., Defendants. LEHIGH VALLEY RAILROAD COMPANY, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants. The BALTIMORE AND OHIO RAILROAD COMPANY, a corporation, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants. R. D. TIMPANY, solely as Trustee of the property of the Central Railroad Company of New Jersey, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

338 F. Supp. 955

ERIE LACKAWANNA RAILWAY COMPANY, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, I. L. A., et al., Defendants.

LEHIGH VALLEY RAILROAD COMPANY, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants.

The BALTIMORE AND OHIO RAILROAD COMPANY, a corporation, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants.

R. D. TIMPANY, solely as Trustee of the property of the Central Railroad Company of New Jersey, Plaintiff, v. LIGHTER CAPTAINS UNION, LOCAL 996, et al., Defendants.

Civ. A. Nos. 1945-71 to 1947-71, and 5-72.

United States District Court, D. New Jersey.

January 27, 1972.

Vincent E. McGowan, Hoboken, N. J. (Frederick G. Hoffmann, Hoboken, N. J., of counsel), for Erie Lackawanna Railway Co.

Nolan & Lynes by Daniel J. Moore, Newark, N. J., for Lehigh Valley Railroad Co.

Lamb, Blake, Hutchinson & Dunne by Raymond J. Lamb, Jersey City, N. J. (Albert W. Laisy, Baltimore Md., of counsel), for Baltimore & Ohio Railroad Co.

Roger L. Camacho, Clifton, N. J., for R. D. Timpany, Trustee, Central R. R. Co.

Thomas L. Parsonnet, Parsonnet & Parsonnet, Newark, N. J., and Waldman & Waldman, New York City (Seymour M. Waldman, New York City, of counsel), for defendants.

LACEY, District Judge:

Plaintiffs sue in these consolidated matters to enjoin a threatened strike by the defendant Union. Their Complaints charge that in collective bargaining negotiations with their multi-employer bargaining unit representative, the New York Harbor Carriers' Conference (the Committee), the Union has violated the imperative of § 2 First of the Railway Labor Act (the Act) (45 U.S.C. § 152 First) "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions".¹ Jurisdiction over the subject matter of this action is conferred upon this Court by 28 U.S.C. § 1337.² Temporary restraining orders enjoining the strike have issued, and by consent of the parties are still outstanding. The instant matter comes on by way of plaintiffs' application for a preliminary injunction.

Plaintiffs are corporations engaged in the interstate rail transportation of freight and passengers and are carriers within the meaning of the Act (45 U.S.C. § 151 First). The defendant Union is the collective bargaining representative through which the other named defendants function in their representation under the Act (45 U.S.C. §§ 151 Fifth-152) of certain present and former employees of the plaintiffs.

The parties have been and still are involved in a major labor dispute under the Act.³ The procedures for resolving such a dispute have been outlined as follows by the United States Supreme Court in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969):

... A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens "substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President," who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10.

See also Detroit & Toledo Shore Line R. R. v. United Transp. Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969); United Transp. Union etc. v. St. Paul Union Depot Co., 434 F.2d 220, 221-222 (8 Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971).

Negotiations between the parties began in May, 1970, after they had exchanged § 6 Notices, served pursuant to 45 U.S.C. § 156.⁴ Plaintiffs, as permitted by the Act (45 U.S.C. § 151 Sixth), bargained through the Committee, for many years the multi-employer bargaining representative for carriers serving the New York Harbor area, with which the defendant Union had bargained and negotiated labor agreements for over 10 years. The § 6 demands of the Union called for increased wages and fringe benefits, and demanded job and wage protection, as follows:

VI. GUARANTEED ANNUAL WAGE: An employee who completes one (1) year of employment, shall be guaranteed 52 weeks pay, at 100% of his wages; until he leaves the company service by reason of retirement, resignation or dies.

The plaintiffs' counterproposals related principally to rules changes.

The affidavits and evidence at hearings on January 17 and 18, 1972, disclose the following. Negotiations at several meetings following May, 1970, led to Union rejection of a Committee "last offer" on or about September 2, 1970 (Ex. P-20); and on September 3, 1970, the Committee, invoking § 5 First of the Act (45 U.S.C. § 155 First), applied for mediation by the National Mediation Board (the Board) (Ex. P-5), the Union acquiesced (Ex. P-7), and a mediator was appointed (Exs. P-6 and 8).

The first meeting with the mediator was on November 16, 1970. Subsequent meetings led to a Union modification in December, 1970, of its § 6 demands; a further Union modification on March 11, 1971 (Ex. P-10); a Committee proposal on March 18, 1971 (Ex. P-21); and a Union counterproposal on April 1, 1971 (Ex. P-11). With the parties still unable to agree, the Board on April 19, 1971, stated that it was unable to effect a settlement of the dispute through mediation and, pursuant to § 5 First, urged that the parties submit to binding arbitration (Ex. P-13). The Committee agreed; the Union declined (Exs. P-14 and 15). On April 23, 1971, therefore, the Board formally relinquished jurisdiction (Ex. P-16), although in subsequent months it continued its mediatory role nonetheless.

On May 11, 1971, the Union submitted another modification of its job protection demands, and then on May 18 and 19, 1971, the parties met in Washington with the Board and arrived at partial agreement on certain wage increases, the agreement further providing for continuing negotiations until December 1, 1971, during which time the Union agreed not to strike and the plaintiffs agreed they would "not change the working agreements." The agreement also stated that a standing committee would be established "to handle the question of the flexibility of use of Captains and employee protection in connection therewith." The agreement was executed by all the carriers then represented by the Committee, that is, all of the plaintiffs herein, and the Penn Central Transportation Company (Penn Central) (Ex. P-17).

The evidence does not disclose any substantial bargaining progress thereafter. Then, on November 29, 1971, on the eve of expiration of the strike extension provided by the May 28, 1971, agreement, Penn Central withdrew from the multi-employer bargaining unit and revoked its power of attorney from the Committee while at a joint meeting of the parties with a mediator (Robert Cerjan), announcing its intention to bargain thereafter separately with the Union. There is no evidence that the Union by any action, or threat of any action, directed solely or selectively at Penn Central, induced, persuaded or coerced it to withdraw. Indeed, plaintiffs neither then nor now make such a charge, but argue only that Penn Central's move was involuntary in the face of the threatened strike against all the railroads (Baltimore & Ohio Reply Memorandum, pp. 1-2). However, during the separate bargaining after November 29, plaintiffs did not style the withdrawal illegal or violative of any agreement among the carriers, or otherwise complain about it to either the Union or mediator. Only the Union's representative raised the question of legality — with the mediator. He received no response; however, it is evident that the Board, by reason of the major role played by it in negotiations thereafter, saw nothing untoward in the circumstances.

With the May 28, 1971, extension agreement about to expire, on November 30, 1971 the Union entered into two separate extension agreements, one with Penn Central, the other with the plaintiffs, waiving its right to strike for an additional 15 days. The plaintiffs did not object to the Union dealing separately with Penn Central.

Thereafter, still without protest from the plaintiffs, negotiations continued in Washington, conducted separately as to the Union and Penn Central on the one hand, and the Union and the four plaintiffs herein on the other. Bargaining occurred on December 2, 3, 7, 8, 13 and 14, 1971, under the Board's direction. The four plaintiffs continued to bargain through the Committee, whose chairman, when Penn Central withdrew, had become Erie Lackawanna's Raymond A. Carroll, replacing as chairman a Penn Central employee, Robert Brown. Brown had been chairman since July, 1971, when he replaced J. W. Oram, chairman of the Committee from the beginning of negotiations. One plaintiff (Baltimore & Ohio) now argues there was an element of unfairness in all this, in that

... the B & O and other plaintiffs relied upon and put their trust in the chairman of the bargaining unit. There were forty-nine separate sessions, lasting from one day up to nearly a week's time duration, throughout the bargaining. At many of these sessions, B & O's sole representative was the chairman of the unit, and B & O and other plaintiffs did not have an officer at such sessions. (Baltimore & Ohio Reply Memorandum, pp. 7-8).

This contention is significant for what it does not say. Did not ...