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April 14, 1959


The opinion of the court was delivered by: DAWSON

This is a proceeding brought on by an order to show cause wherein petitioner, Hudson & Manhattan Railroad Company (hereinafter called 'the Carrier'), seeks a temporary injunction restraining the respondents, the Brotherhood of Railroad Trainmen (hereinafter called 'the Brotherhood'), and various committees, officers and representatives of the Brotherhood, from any strike, work stoppage, slowdown or picketing of the railroad operated by the Carrier.

A hearing was held and the Court finds the following facts:

Petitioner, which operates an electric passenger railroad in interstate commerce between Newark, New Jersey and New York City, which is one of the important commuter transportation systems in the Greater New York area, is now in reorganization pursuant to Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Herman T. Stitchman is the Trustee of the Carrier, which is the debtor in such proceedings.

 One of the routes of the Carrier is between Newark, New Jersey and New York City, which it operates under a joint service arrangement with the Pennsylvania Railroad Company. In the latter part of 1956, petitioner and the Pennsylvania Railroad Company entered into an arrangement by which they would, between them, purchase 50 new cars for use on said route. Petitioner bought and paid for 20 of such cars at a total price of $ 1,675,000. One of the considerations prompting the purchase of the cars by this bankrupt Carrier was the expected saving of labor costs as a result of having modern equipment.

 The old cars previously used by the Carrier did not have multiple door controls and as a result it was necessary to have one trainman between each two cars to open and close the doors. The new cars which have been acquired have multiple door controls, thus enabling one trainman to open and close the doors of an entire train. This feature, in the opinion of the Carrier, would enable it to operate the route with 17 less trainmen. The trainmen also collect tickets between the station stop at Journal Square and the one in Newark. The Carrier believed that if a consolidated job of flagman and ticket collector were established on this route, this together with the multiple door controls, would enable it to operate its trains with a total of 38 less trainmen than had been used in the old cars.

 For a period of about a year representatives of the Carrier and the respondent Brotherhood carried on negotiations with reference to a possible revision of the agreement between them which might be necessary in order to permit these savings to be put into effect. Having been unable to work out an agreement, petitioner, on April 4, 1958, gave notice to the Brotherhood of a proposed change in the basic agreement which would enable petitioner to combine the jobs of flagman and ticket collector. On April 11, 1958, the Brotherhood presented a series of counter-proposals of changes desired by them in the basic agreement.

 Various conferences were held, but no agreement was reached. In October, 1958, the proposals of the Carrier and the counter-proposals of the Brotherhood were submitted to the National Mediation Board under the provisions of § 5 of the Railway Labor Act, 45 U.S.C.A. § 155. Conferences were held with a Mediator appointed by that Board. On February 24, 1959, the National Mediation Board advised the parties that it had been unable to get the parties to reach an agreement and suggested that the parties enter into an agreement to submit the controversy to arbitration under the auspices of the National Mediation Board. The Brotherhood accepted this proposal. The Carrier took the position that it had the right to eliminate unnecessary trainmen jobs under the existing agreement. It decided to drop the proposal to amend the basic agreement to provide for a joint flagman-ticket collector job, thus leaving only an issue as to interpretation of the existing agreement with reference to the elimination of trainmen due to a revision of runs and the multiple control cars. This involved the elimination of 17 jobs, rather than the 38 jobs which would have been involved if the proposed changes in the agreement had been effected.

 On March 2, 1959 the Carrier advised the National Mediation Board that it was its position that it could take action to eliminate unnecessary jobs under the existing contract without serving notice under § 6 of the Railroad Labor Act and that therefore there was nothing to be arbitrated before the National Mediation Board.

 The Carrier thereupon proceeded with its plans for revised work schedules and called upon representatives of the Brotherhood, in accordance with the basic agreement, to make a 'pick' of men for the new schedules. The Brotherhood's representatives refused to make these selections and therefore the Carrier proceeded to put the new assignments into effect on March 20, 1959. The Brotherhood continued to object and on March 27, 1959 petitioner submitted to the National Railroad Adjustment Board the then pending dispute, seeking an award declaring that the work schedules promulgated by it were in accordance with the existing agreement and that the refusal by the Brotherhood to make its selections constituted a violation of the agreement.

 The National Railroad Adjustment Board accepted the controversy and on March 31, 1959, advised the Brotherhood that an answer should be filed by April 30, 1959. Up to the time of the hearing no answer had been filed by the Brotherhood. The revised work schedules of the Carrier went into effect on April 5, 1959, resulting in the elimination of certain jobs.

 On March 26, 1959, petitioner received a copy of a letter bearing date of March 24, 1959, in which the Brotherhood advised the National Mediation Board that the National President of the Brotherhood had authorized a strike on the Carrier's lines to begin at 11:00 p.m. on April 4, 1959. Thereupon application was made for the instant order to show cause and due to the temporary restraining order contained therein no strike has yet taken place.

 The situation on the date of the hearing was, therefore, as follows:

 Petitioner put its revised work schedules into effect resulting in the elimination of 17 jobs, contending that it had a right to do so under the existing agreement. Petition had dropped its proposal to amend the agreement to provide for a joint flagman and ticket collector, which if adopted would have resulted in the elimination of 21 additional jobs. Since the Brotherhood contested the Carrier's interpretation of he agreement the dispute was submitted to the National Railroad Adjustment Board, accepted by it and is now before it. Under the circumstances has this Court the power to enjoin the threatened strike while the matter is before the National Railroad Adjustment Board?

 The law on the subject seems clear. The United States Supreme Court has held in Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 1957, 353 U.S. 30, 77 S. Ct. 635, 1 L. Ed. 2d 622, rehearing denied, 353 U.S. 948, 77 S. Ct. 823, 1 L. Ed. 2d 857, that a District Court may, under the Railway Labor Act bar strikes concerning matters pending before the National Railroad Adjustment Board, and that such ...

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