United Transp. Union v. Lewis

• Decision Date: 17 June 1983
• Docket Number: No. 81-2307,81-2307
• Citation: United Transp. Union v. Lewis, 711 F.2d 233, 228 U.S.App.D.C. 447 (D.C. Cir. 1983)
• Parties: UNITED TRANSPORTATION UNION, et al., Appellants, v. Drew LEWIS, Secretary of Transportation, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 233

711 F.2d 233

228 U.S.App.D.C. 447

UNITED TRANSPORTATION UNION, et al., Appellants, v. Drew LEWIS, Secretary of Transportation, et al.

No. 81-2307.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 23, 1982.

Decided June 17, 1983.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 81-00633).

Lawrence M. Mann, Washington, D.C., for appellants.

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees.

William G. Schaefer, Jr., Washington, D.C., with whom R. Eden Martin and Ronald S. Flagg, Washington, D.C., were on the brief for appellees, Seaboard Coast Line R. Co.

Before GINSBURG, Circuit Judge, BAZELON and MacKINNON, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

Appellants United Transportation Union (the Union), T.E. Lloyd and Patrick Saunders challenged in district court the decisions of appellees Drew Lewis, Secretary of Transportation, and Robert W. Blanchard, Federal Railroad Administrator, (1) that use of metal hooks to open coupler knuckles during railroad humping operations does not violate section 2 of the Safety Appliance Acts, ¹ and (2) that no basis existed under the Federal Railroad Safety Act of 1970 ² for issuing an emergency order prohibiting such use. In two separate orders, the district court held that these decisions were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. United Transportation Union v. Lewis, No. 81-0633 (D.D.C. Nov. 12, 1981); id. (May 29, 1981). We affirm both decisions.

I. BACKGROUND

A. The Hook Procedure

Many railroads have classification (switching) yards that include an elevated area known as the "hump" over which are moved lines of freight cars that must be separated and then reassembled with other cars having a common destination. The hook procedure at issue here is a new development for increasing the efficiency of humping operations. Traditional humping operations are performed by a single switchman. As a group or "cut" of cars is pushed slowly ³ over the crest of the hump, the switchman uncouples the lead car from the cut by pulling a "cut-lever" attached to the front coupler on the following car. This opens the coupler of the following car and causes the lead car to uncouple, which then by the force of gravity moves away from the cut down into the area below, known as the "bowl." During its descent, each car is switched by remote control onto its designated track, where it couples by impact with other cars to form a new cut for delivery to a common destination. ⁴ Only one of the two coupling knuckles needs to be open for cars to disengage or to couple on impact.

Despite the use of perfectly functioning equipment, however, the traditional method of performing humping operations, with one switchman pulling one cut-lever, cannot assure that cars will always couple on impact in the bowl. The vibration of an uncoupled car as it descends into the bowl, or the jarring that occurs when the cars meet, may cause the knuckles of the couplers to close or the drawbar to move out of alignment for coupling. Tr. of Special Safety Inquiry, supra note 4, at 207 (testimony of Charles F. Kelly) (JA 125). Either such result may prevent the car from coupling. ⁵ A switch engine and crew must then be brought to the scene to complete the coupling. This may require a switch engine to separate the cars further and a yard employee to open or manually realign the coupler knuckles of the cars in the bowl. The switch engine then must push the cars together to accomplish the coupling. Id. at 201 (testimony of Charles F. Kelly) (JA 119); id. at 208 (testimony of T.A. Brown) (JA 126). In addition to the added delay and expense of such a preparation, it must be performed in the bowl, which is one of the most hazardous work areas for yard personnel. ⁶ Affidavit of John G. McCormick at 2, 4 (JA 211, 213).

In order to reduce the frequency of such manual adjustments by trainmen in the bowl, intervenor Seaboard Coast Line Railroad Company (Seaboard) and other railroads ⁷ conceived and instituted in 1979 the hook procedure which is the subject matter of this case. Notice of Special Safety Inquiry at 2 (JA 78). Departing from the traditional procedure, Seaboard adds a second switchman on the hump. As the cut passes over the hump, one switchman stationed at the front of the second car operates its cut-lever, which causes the lead car to uncouple from the rest of the cars in the cut. Immediately after the lead car is uncoupled ⁸ the second switchman stationed on the other side of the rails pulls the rear cut-lever of the lead car and, shortly thereafter with the other hand, inserts the tip of a metal hook into a hole at the top end of the knuckle and pulls the hook toward himself, thus opening the knuckle to its maximum width (if it was not so already). Id. Both switchmen then walk back to the rear of the next car to be uncoupled from the cut and repeat the process. Because both couplers are wide open as a car leaves the hump, there are substantially fewer instances of initial failure to couple in the bowl. ⁹ As a result, the railroad is able to operate the yard with two or three fewer switch engine crews. Id. at 205 (testimony of Charles F. Kelly) (JA 123). The financial saving is thus quite substantial. ¹⁰

The hooks have a hooked tip on one end to slip into the hole in the top of the knuckle and vary in length from 34 to 42 inches. ¹¹ See Figure 1. While it is uncontested that the hook-wielding switchman must insert some portion of his body between the cars, see Brief for Intervenor at 8, the precise extent of such insertion is controverted. ¹² It is clear, however, that the switchman is not required to insert his entire body between the cars or to cross the rails to stand between them. ¹³ Furthermore, the switchman pulls the hook at right angles to, and away from, the separated cars. See Figure 2.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

FIGURE 1

Statement of Daniel H. Greer, Seaboard Assistant Engineer, app. (Oct. 28, 1980) (prepared testimony submitted to Special Safety Inquiry, supra note 4), submitted to United Transportation Union v. Lewis, No. 81-0633 (D.D.C. Nov. 12, 1981) (Exhibit 14, Tab 4(d)).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

FIGURE 2

The cut lever has been pulled up by the brakeman's left hand and the hook is being positioned in the knuckle by his right hand. The outline behind him is of the boxcar from which the lead car was uncoupled.

Piotrowski & Williamson, The Biomechanics of the Use of Hooks to Open Coupler Knuckles, fig. 3 (Nov. 10, 1980) (exhibit submitted to Special Safety Inquiry, supra note 4), submitted to United Transportation Union v. Lewis, No. 81-0633 (D.D.C. Nov. 12, 1981) (Exhibit 14, Tab 7).

B. Investigations and Proceedings by the Federal Railroad Administration

In April 1979, the Union requested that the Federal Railroad Administration (FRA) investigate the safety of the hook procedure at Seaboard's Rice Yard in Waycross, Georgia. FRA safety inspectors who visited the Rice Yard that summer judged the procedure to be unsafe and violative of section 2 of the Safety Appliance Acts. ¹⁴ Joseph W. Walsh, Associate Administrator for Safety, requested by letter that Seaboard stop using the hooks. ¹⁵

Seaboard did not honor the request, however, and in December 1979 the Union requested FRA to order Seaboard to discontinue use of the hooks. Notice of Special Safety Inquiry at 3 (JA 79). FRA conducted further investigations at the Rice Yard in the summer of 1980, and the inspectors again found the procedure to be hazardous and illegal under section 2. ¹⁶ Seaboard again declined to halt the practice, and FRA issued a Notice of Special Safety Inquiry in order to gather information to determine whether regulatory action should be taken. Id. at 1 (JA 77). A public hearing was held at Waycross in October 1980.

After the hearing, Raymond K. James, then Chief Counsel of FRA, advised Seaboard ¹⁷ by letter that he deemed the procedure to violate section 2. ¹⁸ Seaboard nonetheless continued using the hook, and James subsequently requested the United States Attorney in Georgia to seek injunctive relief. Deposition of Raymond K. James at 13 (JA 182). Whether such relief would be sought was thus committed to the discretion of the U.S. Attorney. However, because James did not believe the practice was unsafe--or at least so unsafe as to require emergency action ¹⁹--he declined to recommend issuing an emergency order pursuant to 45 U.S.C. § 432(a). Id. at 10 (JA 179).

After a new national administration took office and designated another Administrator and Chief Counsel for FRA in 1981, the U.S. Attorney was requested to hold the matter in abeyance pending further instructions from FRA. ²⁰ Broadley, the new Chief Counsel, reviewed the legal and factual background of the dispute and concluded that (1) the procedure does not violate section 2 or any other federal rail safety statute or regulation and (2) FRA should take no further action on the matter. 46 Fed.Reg. 32,364 (1981) (JA 222). The new Administrator, Robert W. Blanchette, accepted Broadley's recommendation that the inquiry be terminated. Blanchette concluded that the hook procedure (1) does not violate section 2 or any other federal rail statute or regulation, (2) does not create an undue hazard to hump employees, and (3) may contribute to employee safety by substantially reducing the number of manual couplings that must be made by switching operations in the bowl. Id. at 1-4 (JA 218-21). A notice terminating the Inquiry...