INTERNATIONAL BRO. OF ELEC. WKRS. v. Washington Term. Co.

• Decision Date: 19 December 1972
• Docket Number: No. 24880.,24880.
• Citation: 473 F.2d 1156
• Parties: INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellant, v. WASHINGTON TERMINAL COMPANY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 1156 (1972)

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellant, v. WASHINGTON TERMINAL COMPANY.

No. 24880.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 1972.

Decided December 19, 1972.

Certiorari Denied March 26, 1973.

COPYRIGHT MATERIAL OMITTED

Mr. Harold A. Ross, Cleveland, Ohio, with whom Mr. E. Victor Willets, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Stephen A. Trimble, Washington, D. C., with whom Mr. Nicholas D. Ward, Washington, D. C., was on the brief, for appellee.

Before TAMM and MacKINNON, Circuit Judges, and RONALD N. DAVIES,^* United States Senior District Judge for the District of North Dakota.

Certiorari Denied March 26, 1973. See 93 S.Ct. 1530.

MacKINNON, Circuit Judge:

The International Brotherhood of Electrical Workers (IBEW or Electricians) brings this appeal from an order entered by the District Court, on October 19, 1970, denying a preliminary injunction against the Washington Terminal Company (Company) in a railway labor dispute. The origin of the dispute lies in that round of contract negotiations between the Nation's railroads and four of the six railroad shop craft unions¹ which was ultimately concluded only upon enactment by Congress of Public Law 91-226 on April 9, 1970.²

Public Law 91-226 placed into effect—"as though arrived at by agreement of the parties under the Railway Labor Act"—a Memorandum of Understanding (hereinafter Memorandum) relating to the dispute between the parties that had been agreed to by the bargaining representatives of all four parties to the negotiation, but which had failed of ratification by the membership of one of the unions, the Sheet Metal Workers. This Memorandum included an "incidental work rule" by which the bargaining representatives of the unions agreed, subject to ratification by their respective members, to relax the formerly rigid classification of work rules to the extent of permitting a carefully limited crossing of normal craft lines at "running repair work locations" on the Nation's railroads for the performance of tasks "incidental" to a "main work assignment."³

Following the enactment of Public Law 91-226 the railroads concluded a national agreement with the Brotherhood of Railway Carmen (Carmen), one of the other shop craft unions, containing an identically phrased "incidental work rule." Shortly after consummation of this agreement with the Carmen the Washington Terminal Company began assigning "incidental work" normally falling within the Electricians' classification to employees belonging to the Carmen's union. The Electricians immediately complained to the Company and, after direct discussions had led to no satisfactory resolution, this suit was initiated by the IBEW (Electricians) on September 15, 1970. The objective of the litigation is to prevent the Company from continuing to use Carmen to perform any incidental work of Electricians. On September 29, the District Court denied a temporary restraining order, and after hearing oral argument on October 6, the District Judge ruled from the bench that a preliminary injunction against the Company was not warranted. An order formally stating that conclusion was entered October 19, and this appeal followed. We believe the request for preliminary injunction was properly denied and accordingly we affirm the order of the District Court.

I.

A. National Negotiations Leading to Passage of Public Law 91-226⁴

This dispute represents another episode in the long-running struggle over work rules between the nation's railroads and the labor organizations who represent railroad employees. Negotiations were initiated in November 1968 when four of the shop craft unions—the Machinists, Electricians, Boilermakers and Sheet Metal Workers (IAM, IBEW, IBBB and SMWI)—and the railroads exchanged notices pursuant to section 6 of the Railway Labor Act.⁵ The unions' notices requested only increases in wage rates; the railroads' notices proposed a broad range of changes in work rules, including a rule which would eliminate work classification distinctions between the four unions and create, in essence, a composite mechanic's classification. Bargaining on these proposals proceeded through the entire range of procedures provided by the Railway Labor Act,⁶ with the only appreciable progress coming through Emergency Board No. 176's recommendations for narrowing the issues to be resolved.

Having exhausted the procedures of the Act,⁷ and in a last ditch attempt to avoid the consequences of a nationwide rail strike, intensive bargaining through the mediation efforts of the Department of Labor was commenced. The major breakthrough in these negotiations occurred when the Unions presented a draft of an "incidental work rule" in substantially the same form as it appeared in the final memorandum. Following this dramatic shift in the unions' position the carriers responded with significantly increased wage offers and a Memorandum of Understanding was reached and initialed by all parties on December 4, 1969. However, by prior agreement among the unions this Memorandum was submitted to each union's membership for ratification with the understanding that all four unions must ratify or none would sign a formal contract embodying the terms of the Memorandum. On December 17, the ratification votes were announced; the Sheet Metal Workers had rejected the agreement.

The key to this agreement, the source of dissatisfaction to the Sheet Metal Workers, and the source of the dispute before us here, was the "incidental work rule."

The Incidental Work Rule

The principal part of the rule provides⁸:

At running repair work locations which are not designated as outlying points where a mechanic or mechanics of a craft or crafts are performing a work assignment, the completion of which calls for the performance of "incidental work" (as hereinafter defined) covered by the classification of work rules of another craft or crafts, such mechanic or mechanics may be required, so far as they are capable, to perform such incidental work provided it does not comprise a preponderant part of the total amount of work involved in the assignment. Work shall be regarded as "incidental" when it involves the removal and replacing or the disconnecting and connecting of parts and appliances such as wires, piping, covers, shielding and other appurtenances from or near the main work assignment in order to accomplish that assignment. Incidental work shall be considered to comprise a preponderant part of the assignment when the time normally required to accomplish it exceeds the time normally required to accomplish the main work assignment. In no instance will the work of overhauling, repairing, modifying or otherwise improving equipment be regarded as incidental.

The carriers considered this rule to be both a major milestone in their efforts to achieve more efficient utilization of manpower, and the quid pro quo essential to the wage increases they had offered. The Sheet Metal Workers were unwilling to consider any lower wages than those offered, yet their opposition to the incidental work rule was so implacable that they contended no wage increase would be sufficient to induce them to accept the rule.

Faced with these respective bargaining positions, further Labor Department mediation efforts were futile and the parties prepared to resort to self-help. The unions struck the Union Pacific on January 31, 1970; the railroads promptly announced a nationwide lockout to take effect at 10:00 p. m. the same date; and both parties brought suit in the United States District Court for the District of Columbia seeking to restrain the action of the other. Temporary restraining orders were entered that afternoon halting the strike and forestalling the lockout.⁹ These orders were subsequently extended through March 2, when a preliminary injunction against selective strikes by the unions was issued.¹⁰

Negotiations sponsored by the Labor Department continued during this period, with two significant changes taking place. Recognizing the implacable opposition of the Sheet Metal Workers to the agreement reached in December, the other three unions—Electricians, Machinists and Boilermakers—offered to sign a contract embodying the terms of the Memorandum without the Sheet Metal Workers joining. When the carriers rejected this offer, the Carmen indicated their willingness to sign such a contract and the representatives of the three other unions offered to replace the Sheet Metal Workers with the Carmen and sign the contract with those four unions. This proffered agreement without the Sheet Metal Workers was also rejected by the carriers. Meanwhile, the Sheet Metal Workers withdrew authority from the national union bargaining team to represent them, and they declared that any further negotiations would have to be conducted with one of their own officers.

When the District Court announced its injunction against selective strikes on March 2, 1970, all of the original four unions declared their intention to commence a nationwide rail strike at midnight on March 4th. The President responded to this threat to the nation's economic well-being by requesting legislation from Congress that would place the December 4, 1969 Memorandum of Understanding into effect as the contract between the parties.¹¹ Congress, however, was unwilling, on such short notice, to force a contract on the still recalcitrant Sheet Metal Workers. Thus Public Law 91-203,¹² enacted on March 4, 1970, froze the existing situation by prohibiting either a strike or a lockout prior to April 11, 1970.

During the next month further negotiations were held under the mediation efforts of both the Labor Department and members of Congress. The Sheet Metal Workers union remained adamant in its opposition to the incidental work rule and the railroads refused to budge from their insistence that the wage increases offered were immutably tied to...