United Transportation U. v. Penn Central Transp. Co.

• Decision Date: 12 December 1973
• Docket Number: Civ. A. No. 73-2324.
• Citation: 372 F. Supp. 671
• Parties: UNITED TRANSPORTATION UNION v. PENN CENTRAL TRANSPORTATION COMPANY et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

372 F. Supp. 671

UNITED TRANSPORTATION UNION v. PENN CENTRAL TRANSPORTATION COMPANY et al.

Civ. A. No. 73-2324.

United States District Court, E. D. Pennsylvania.

December 12, 1973.

Cornelius C. O'Brien, Jr., Philadelphia, Pa., for plaintiff.

Hermon M. Wells, Philadelphia, Pa., for defendants.

MEMORANDUM OPINION AND ORDER

BRODERICK, District Judge.

Plaintiff, United Transportation Union (Union), commenced this action to enjoin the Penn Central Transportation Company (Company), defendant herein, from abolishing certain yard job assignments at the defendant's Pavonia Yard, Camden, New Jersey and Gray's Ferry, Greenwich and Tacony Yards, Philadelphia, Pennsylvania. The Union also seeks to have the Company rescind the abolition of certain yard positions which abolition was carried out in June 1973 at the Morrisville Yard, Morrisville, Pennsylvania. This action was begun on October 15, 1973 when the Union made application for a temporary restraining order to Emergency Judge Davis. Judge Davis issued an order restraining the defendant from abolishing "present second trick hump" assignments at defendant's Pavonia Yard and the second trick yard assignment at the Gray's Ferry Yard, until further order of the Court. A hearing was set for October 25, 1973, on plaintiff's Motion for a Preliminary Injunction. Pursuant to Rule 65(a)(2) F.R.Civ.P., and by agreement of the parties the Court ordered the trial of the action on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction.

Plaintiff, a labor organization, represents trainmen (including conductors and brakemen) employed by the Company. The rights and obligations of the Company and its employees who are involved in this case are governed by collective bargaining agreements between the Union and the Company. One of these Agreements is the National Agreement which was signed in May 1951, Article 3 of which provides:

Section 1. (a) Beginning on the date this Agreement becomes effective on any carrier, such carrier will establish, for all classes or crafts of yard service employes covered by this Article 3, subject to the exceptions contained therein, a work week of forty hours, consisting of five consecutive days of eight hours each, with two days off in each seven, except as hereinafter provided.

The other Agreement consists of rules binding on the parties since September 1942. Rule 5-L-1 provides:

Yard trainmen shall be assigned for a fixed period of time which shall be for the same hours daily for all regular members of a crew. So far as practicable assignments shall be restricted to eight hours' work.

Prior to June 3, 1973 at all of the terminals of the Company hereinafter discussed, the Company maintained three shifts of crews working twenty-four hours a day, each shift or "trick" working eight hours per day, five consecutive days a week. On or about June 3, 1973, the Company carried out certain changes in the assignments of train crews at Morrisville Yard. The Company abolished the second "trick" assignments to the hump¹ operation which had previously been required to report to work at 3:59 P.M. in Morrisville Yard. Thereafter, the remaining crews working in the hump operation at Morrisville Yard were required to perform several hours of overtime work² for which they have been compensated pursuant to the contract at the rate of time and one-half after eight hours. There was evidence³ showing that the number of cars "humped" between June 1973 and October 1973 was less than the actual number of cars "humped" in the corresponding period in 1972, evidencing some possible diminution of work performed at the hump operation in Morrisville. In the past the hump operation at Morrisville was at times a two-trick operation and at other times a three-trick operation.⁴

On or about October 13, 1973 the Company posted notices to abolish job assignments at the Pavonia Yard, Camden, New Jersey, and at Gray's Ferry, Greenwich and Tacony Yards in Philadelphia, such notices to be effective at 3:59 P.M. on either October 15 or 16, 1973. At the Pavonia Yard the Company's notices would effect an abolition of the entire second shift of crews engaged in the hump operation presently reporting at 3:59 P.M. and the abolition of one hump crew on the third shift. The result of these changes would be to place the hump operation on a two-trick basis with crews to report at 7:59 A.M. and 10:30 P.M.

At Gray's Ferry the Company published notices which would effect the abolition of the entire second trick presently reporting at 3:59 P.M. and the necessary services would be performed by two yard crews, one to report at 7:59 A.M. and the other at 10:30 P.M. The Company concedes that said yard crews would normally incur some overtime.

At Greenwich Yard, the Company's notices would effect the abolition of one-half of all crews on all shifts for hump operations. Greenwich continues to operate on a three-trick basis and no conclusive evidence has been adduced as to whether the remaining crews would normally be required to work beyond their eight hour shifts.

At Tacony Yard the effect of the Company's notices would be to abolish two out of the present six crews, one on the second shift and one on the last shift for yard operations. The three trick operation would still continue and the remaining crews would carry on around the clock, i. e., three eight hour shifts.

The Company has changed the "ratables" for the crews remaining at Pavonia and Gray's Ferry Yards. "Ratables" are estimates by the Company of job earnings in a particular position for use in connection with certain wage guarantees under existing agreements between the Company and the Union. Since "ratables" are merely estimates, they do not control the amount of time which the assignment works. The "ratables" for Gray's Ferry and Pavonia Yards were adjusted on October 11, 1973 and October 12, 1973, respectively, to reflect the increased amounts expected to be earned by the remaining crews as a result of the estimated increase in overtime.

Representatives of the Company testified that there would not be regular substantial overtime as a result of the abolition of the aforesaid yard positions and that overtime is a matter of established practice for yard service employees in the hump operation. The witnesses for the Union, however, testified that the abolition of the yard positions in question would result in yard crews working more than eight hours a day on a regular basis.

After consideration of the conflicting evidence, the Court finds that with the abolition of the second trick at Morrisville, Pavonia and Gray's Ferry Yards working more than eight hours per day will become the rule rather than the exception at these yards. The evidence indicates that the remaining crews at the Morrisville Yard have worked substantial overtime since the abolition of the second trick. At the Pavonia Yard, where the entire second shift will be abolished, the testimony indicates that on the one day the change was in effect, the remaining two shifts worked several hours overtime. Although this may be insufficient to establish that the remaining crews will regularly be required to work overtime, it indicates a possible trend. As to the Gray's Ferry Yard, where the entire second shift will be abolished, the Company has admitted that the remaining crews will be required to work overtime. This evidence, in conjunction with the adjusted "ratables", which reflect the Company's estimates as to the effect of its proposed changes, is an indication that overtime will become more prevalent if not regular in the yard positions in question.

At the Tacony and Greenwich Yards, the second shift at each of these yards has not been abolished but only particular crews in each shift. There is no substantial evidence that crews at these yards will be required to work additional overtime.

The Union contends that it is entitled to an injunction to prevent the Company from unilaterally making these changes. It is the Union's position that Article 3 and Rule 5-L-1 mandate a forty hour work week of eight hours per day for yard service employees and that these provisions prohibit the Company from establishing assignments which insofar as practicable are not restricted to eight hours per day and forty hours per week. It is asserted that for the Company to make these changes would be impermissible unilateral changes in working conditions already established by the agreements, thereby constituting a "major" dispute between the parties, which is a violation of the Railway Labor Act. Section 6 of the Railway Labor Act provides:

Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board.

The Union claims that it is entitled to an injunction to restore and retain the "status quo" until such time as the Company complies with the Act, especially Section 6 thereof. In the alternative, the Union argues that even if this Court determines that the present dispute is a "min...