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January 27, 1972

Erie Lackawanna Railway Company et al., Plaintiffs,
Lighter Captains Union, Local 996, International Longshoremen's Association et al., Defendants.

Lacey, District Judge.

The opinion of the court was delivered by: LACEY

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". *fn1" Jurisdiction over the subject matter of this action is conferred upon this Court by 28 U.S.C. § 1337. *fn2" 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. *fn3" 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, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (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, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969); United Transp. Union, Local Lodge No. 31 v. St. Paul Union Depot Co., 434 F.2d 220, 221-2 (8 Cir. 1970), cert. denied, 401 U.S. 975, 28 L. Ed. 2d 324, 91 S. Ct. 1194 (1971).

 Negotiations between the parties began in May, 1970, after they had exchanged § 6 Notices, served pursuant to 45 U.S.C. § 156. *fn4" 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' counter proposals 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 counter-proposal 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)

 On either December 7 or 8, the Union once again modified its proposals or demands on job protection, this time tendering a proposition under which captains who lost employment would receive on a varying scale initially $50.00 a week and later $100.00 a week over a period of 15 years. When first offered, this proposition was tendered in essentially the same terms, although independently, to both Penn Central on the one hand and the plaintiffs on the other.

 By December 14, 1971, however, the essentials of the negotiations between the Union and Penn Central had undergone a change. Plaintiffs learned this on December 14, 1971, when Mr. Carroll was advised that the Union and Penn Central had reached an agreement, subject to membership ratification (by Penn Central employees voting separately), without job protection; and Mr. Carroll immediately advised the Union that the plaintiffs would enter into a like agreement. On December 15, 1971, in the ratification vote, the Penn Central employees unanimously accepted the Union-Penn Central agreement. The balance of the membership, including the members employed by the plaintiffs in this case, voting together, unanimously rejected Mr. Carroll's proposal. Plaintiffs complain about this separate voting. Obviously, the Penn Central employees should have voted, and were entitled to vote, separately. Plaintiffs then make the further claim that the employees of each should also have been permitted to vote as a separate group. The answer to this argument is, first, the employees did not ask to do so; second, there was one proposal, that submitted by Mr. Carroll, for all of the plaintiffs; and third, in any event, the employees unanimously rejected plaintiffs' proposal.

 Thereafter, on December 21, 1971, the Union gave to Mr. Carroll and the plaintiffs herein a strike notice, effective January 4, 1972. The strike was enjoined by the temporary restraining orders entered herein and on January 4 the parties met in another bargaining conference. At this conference the Union, at the suggestion of Mr. Cerjan, the Board mediator, offered to 3 of the 4 plaintiffs (Baltimore & Ohio, Lehigh Valley, and Central Railroad of N.J.) this proposal -- settlement of the job protection demand by a severance payment of $5,000 for each captain. These three carriers have gone, or shortly will go, out of the lighterage business, which is why they were offered treatment different from that tendered Erie Lackawanna. At this same conference the so-called "15 year" demand, theretofore presented by the Union on December 7 or 8, was re-presented to Erie Lackawanna. No agreement was reached and this conference apparently terminated unhappily when the Union representative took offense at what he felt was a basically unfair carrier demand which sought to modify the $5,000 proposal. The record discloses no meetings thereafter between the parties.

 On the basis of the foregoing, the plaintiffs charge that the defendant Union has abridged the Act's mandate to bargain in good faith, and, therefore, under the rule of Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971), that the Union has disabled itself from utilizing the self-help economic weapon of the strike. *fn5" Plaintiffs thus seek preliminary injunctive relief against the defendants which would enjoin a strike and direct "good faith" bargaining.

 Analysis of Chicago & N.W. Ry. reveals that the Supreme Court held: § 2 First of the Act requires good faith bargaining; that a strike following a Union's failure to bargain in good faith can be enjoined, the Norris-LaGuardia Act's anti-injunctive provisions notwithstanding (402 U.S. at 572, n. 2; 579, n. 12); and that thereafter the Union could by injunction be directed to return to the bargaining table, this time to pursue good faith bargaining procedures. 402 U.S. at 581. Cf. 402 U.S. at 596 (Brennan J., dissenting). The Supreme Court remanded and, on remand, the United States District Court held that the Union had not bargained in good faith and it enjoined the threatened strike and ordered resumption of bargaining, this time in good faith. 330 F. Supp. 646 (N.D. Ill. 1971).

 Our task is thus clearly defined. The good faith of the Union in labor negotiations having been challenged, we must, after holding such hearings as are appropriate, evaluate the evidence thus adduced, and make a determination on the "good faith" issue. It is a task which must be approached with "great circumspection." *fn6" , *fn7" The late Justice Harlan, writing for the majority in Chicago & N.W. Ry., was not unmindful of the inherent dangers in the Court's holding. Recognizing first that the party who sought to maintain the status quo might be reluctant to compromise during negotiations, given the hope of indefinitely postponing resort by the other party to self-help after exhaustion of the Act's procedures, Justice Harlan stated (402 U.S. at 583):

. . . Finally, the vagueness of the obligation under § 2 First could provide a cover for free-wheeling judicial interference in labor relations of the sort that called forth ...

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