Florida EC Ry. Co. v. Brotherhood of R. Trainmen

• Citation: 336 F.2d 172
• Decision Date: 18 August 1964
• Docket Number: No. 21356.,21356.
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Appellant, v. BROTHERHOOD OF RAILROAD TRAINMEN, AFL-CIO, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

336 F.2d 172 (1964)

FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Appellant, v. BROTHERHOOD OF RAILROAD TRAINMEN, AFL-CIO, Appellee.

No. 21356.

United States Court of Appeals Fifth Circuit.

August 18, 1964.

COPYRIGHT MATERIAL OMITTED

Chester Bedell, Nathan Bedell, Jacksonville, Fla., William B. Devaney, Washington, D. C., for appellant.

Allan Milledge, Neal Rutledge, Miami, Fla., Sherman L. Cohn, Atty., Barbara W. Deutsch, Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and BREWSTER, District Judge.

JOHN R. BROWN, Circuit Judge.

Florida East Coast appeals from the grant of a preliminary injunction¹ which restrains it from operating under working conditions different from those contained in its agreement with the Brotherhood of Railroad Trainmen, the bargaining representative of FEC's employees in the crafts of trainmen and yardmen.² The primary question presented is to what extent, if at all, is a Carrier faced with strike conditions free to institute changes affecting rates of pay, rules, or working conditions without complying with the procedures provided in § 6 of the Railway Labor Act?³

The unusual importance of the facts giving rise to this controversy requires that we state them in some detail.

The November 2, 1959 Notice

On November 2, 1959, FEC, along with the other 200-odd Class I Carriers in the United States, issued two notices pursuant to § 6 to its operating organizations, including BRT. One related to "Consist of Crews," the other, to "Basis of Pay and Assignment of Employees." Conferences between individual carriers and the operating organizations failed to produce agreement, and negotiations on a national level were begun.⁴ The national negotiations of the November 2, 1959 notice likewise did not produce agreement, and in October of 1960, the Organizations⁵ and the Carriers agreed to the creation of a Presidential Railroad Commission which was to investigate and report on the controversy, using its "best efforts, by mediation, to bring about an amicable settlement * * *."⁶ On February 28, 1962, the report of the Commission⁷ was delivered to the President. National conferences on the remaining unsettled issues resumed on April 2, 1962, and continued through May 17. These conferences did not result in agreement, and on May 21 the Organizations applied for the mediation services of the National Mediation Board pursuant to § 5 of the Act. After numerous meetings⁸ had been held under the auspices of the Board without agreement being reached, the Board on July 16, 1962, terminated its services.⁹ The Carriers then served notice that they intended to put the November 2, 1959, notice into effect,¹⁰ and the Organizations and Carriers began the litigation which was to culminate in the Supreme Court holding that the statutory procedures having been exhausted, the November 2, 1959, notices could be put in effect subject only to the invocation of a § 10 Emergency Board. Brotherhood of Loc. Eng. v. B. & O. R. R., 1963, 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759.

While the B. & O. case was making its tortuous way to the Supreme Court, things were happening back at the FEC yard. On January 23, 1963, 11 cooperating, non-operating labor organizations¹¹ representing certain FEC employees went out on strike over a wage demand as to which all parties concede the procedures of § 6 had been exhausted. The BRT did not issue a strike notice, but its members honored the picket lines of the non-operating organizations and consequently did not report for work. Eleven days later, on February 3, 1963, FEC resumed operations by utilizing supervisory personnel and some replacement workers. It is uncontradicted on this record that replacements utilized in the trainmen and yardmen crafts were worked under conditions which differed from those provided by the collective bargaining agreement then in effect between FEC and the BRT.¹²

Then on March 4, 1963, the B. & O. decision came down, and on March 12, 1963, the FEC withdrew authority from the Southeastern Carriers Conference Committee to negotiate for it the November 2, 1959, notice. The formal mandate of the Supreme Court in the B. & O. case was received in the District Court in Illinois on April 2, 1963, and on that day the National Railway Labor Conference sent a telegram to the National Mediation Board advising that the District Court upon receipt of the mandate had dissolved the injunction restraining the Carriers from making the November 2, 1959, changes effective, and that the Carriers proposed to make them effective on April 8. On the same day, April 2, FEC advised its operating Organizations including BRT that it proposed to make the November 2, 1959, notices effective on April 3. Likewise on April 2, the Mediation Board certified by letter to the President the existence of an emergency and recommended the appointment of an Emergency Board under § 10. On April 3, Emergency Board No. 154 was created.

Meanwhile, apparently on receipt of FEC's April 2 letter, the BRT issued a strike notice effective April 5. This occasioned no change in FEC's operations since FEC had been struck by the nonoperating crafts since January 23, 1963, and during all this time the BRT had honored the picket lines. However, the United States was convinced that FEC could not place the notice into effect until the Emergency Board had finished its investigation of the dispute and the 30-day waiting period provided in § 10 had expired.¹³ The United States was successful on May 7, 1963, in obtaining an injunction to that effect. United States v. Florida East Coast Ry., D.D.C., 1963, 221 F.Supp. 325.¹⁴ Emergency Board No. 154 reported on May 13, 1963, and the 30-day waiting period subsequently expired. The FEC and the other Carriers were then free for the first time to put the November 2, 1959, notices into effect.

That is precisely what FEC did. On July 8, 1963, it issued a formal notice to the operating Organizations, including BRT, that on July 10, 1963, the November 2, 1959 notices would be put into effect. The BRT again issued a formal strike notice,¹⁵ but — as in April — this did not change the operating situation since the BRT was still refusing to cross the picket lines of the non-operating crafts who were still out on strike. Consequently, the November 2, 1959, notice was formally¹⁶ in effect as of July 10, 1963.

Then on August 28, 1963, Congress passed Public Law 88-108,¹⁷ which among other things prohibited Carriers which had served the November 2, 1959, notice from unilaterally making changes in "rates of pay, rules, or working conditions encompassed by * * * such" notice and ordered that action of the sort prohibited which had already been taken be rescinded, and "the status existing immediately prior to such action restored." It further provided that two of the issues encompassed by the November 2, 1959 notice were submitted to binding arbitration¹⁸ and set up the procedure for accomplishing that arbitration. In response to the request of Secretary of Labor Wirtz, the FEC withdrew November 2, 1959, rules which it had formally put into effect on July 10, for the life of Public Law 88-108. When 88-108 expired by its own terms on February 24, 1964, four days before the hearing in the District Court which resulted in the March 2, 1964, preliminary injunction appealed from, the FEC again placed the November 2, 1959, notice formally into effect.¹⁹ This brings us to date with respect to the November 2, 1959, notice. But meanwhile, other things were happening.

The Union Shop Notice

On July 31, 1963, the FEC issued a new § 6 notice to the BRT that it proposed to cancel the union shop provision of the collective bargaining agreement. Representatives of the FEC and BRT assembled at the Monson Hotel in St. Augustine, Florida, on August 29, 1963, but the conference never began. The FEC insisted on having a Court Reporter present to record the meeting, and the BRT refused to negotiate under such circumstances. Consequently, on September 4, the BRT requested the services of the National Mediation Board. The Board accepted the case, and it was docketed the same day as NMB A-7026. On September 9, the FEC received a letter from the National Mediation Board informing that the matter had been docketed. However, earlier that same day (September 9, 1963), the FEC had written the BRT to say that the conference having been ineffectual and the services of the Mediation Board not having (to its knowledge) been invoked, it was putting the July 31, 1963, notice abolishing the Union Shop into effect. The Union Shop portion of the collective bargaining agreement has not been honored since that date although the matter still pends before the Mediation Board.

The September 25, 1963 Notice

As we indicate in the preceding statement, the FEC has operated since February 3, 1963, under conditions of employment that differ from both the pre-1959 collective bargaining agreement and the agreement as it would be amended by the November 2, 1959, notice. Those actual operating conditions were formally reduced to writing on September 1, 1963, and all employees hired to work in the trainmen and yardmen crafts since that date have been required to sign a copy of this formal promulgation called by FEC "Conditions of Employment." Then on September 25, 1963, the FEC served a § 6 notice which proposes to amend the collective bargaining agreement to provide rates of pay, rules, and working conditions which all concede are substantially identical to those embodied formally in the "Conditions of Employment" and followed in actual practice since February 3, 1963. On October 30, 1963, the FEC resumed conferences on the November 2, 1959, and the September 25, 1963, notices, discussing the November 2, 1959, notice first. On November 1, 1963, the discussion of the September 25, 1963, notice continued. The parties were still discussing this notice on February 28,...