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June 19, 1959

UNITED RAILROAD WORKERS DIVISION OF TRANSPORT WORKERS UNION OF AMERICA, in its own right and as representative of the United Railroad Workers of America, CIO, Local 1463 and its members, et al., Defendants. BALTIMORE & OHIO RAILROAD COMPANY, Bush Terminal Railroad Company, the Central Railroad Company of New Jersey, et al., Plaintiffs, v. MARINE ENGINEERS' BENEFICIAL ASSOCIATION, LOCAL NO. 33, AFL-CIO, in its own right and as representative of its members, et al.

The opinion of the court was delivered by: BRYAN

Plaintiff railroads are common carriers engaged in interstate commerce and coming into and serving the City and Port of New York. Defendants are alleged to be unions and officers of unions representing railroad employees in various crafts working on the fleets of tugboats operated by the respective railroads in and about New York harbor.

In action No.147-119 plaintiffs sue for an injunction to restrain what is alleged to be an unlawful strike or work stoppage threatened against them on their harbor tugs in violation of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., and for damages sustained as a result thereof.

 This labor dispute stems from action taken by plaintiff railroads on June 10, 1959, when they posted notices advising that all positions as firemen, oiler or oiler-firemen on the tugs using diesel power would be abolished as of five days later at 12:01 a.m. on June 15, 1959. No other prior notice of this contemplated action had been given by the railroads either to unions or employees.

 Defendant Local 1463 of the Transport Workers Union thereupon advised the plaintiff railroads that it had authorized a strike of tugboat and bridge forces to be called on June 15, 1959, at 12:01 a.m., when the abolition of these positions became effective, and that it was actively soliciting the support of other unions also to strike against the plaintiffs.

 The plaintiff railroads thereupon commenced the present action and secured from this court an order to show cause why a temporary injunction against such strike or work stoppage should not be granted. The order contained a provision restraining a strike or work stoppage or the aiding, abetting or encouragement of such action pending the hearing and determination of the motion.

 Upon the return day of the railroads' motion for a preliminary injunction the defendant unions brought on by order to show cause cross-motions for an order directing the railroads to restore the firemen-oilers who had been fired to their positions pending determination under the procedures authorized by the Railway Labor Act of the labor dispute which they claimed existed by reason of this controversy.

 Prior to the hearing of the motion, and on June 15, 1959, the railroads, pursuant to their notice, had fired at least 125 oilers employed upon their diesel tugboats. The oilers so laid off began picketing piers and other places where the tugboats were tied up. As a result, employees in other crafts refused to cross the picket lines and all railroad traffic in the harbor by water ceased to move.

 There was considerable controversy upon the argument of these motions as to whether the unions had withdrawn all strike authorizations and had instructed their members to work, or whether they were at least encouraging or aiding the work stoppage in violation of the temporary restraining order. However, this question is not now before me and I am concerned at this time only with whether a temporary injunction should be issued as the railroads ask and whether the railroads should be directed to restore the oilers to their positions pending appropriate action under the Railway Labor Act as the unions request. These are the only issues posed by the present motion and cross-motions.

 Prior to the argument of the motion the railroads made an ex parte submission to the Railway Adjustment Board of what they apparently claimed to be the nub of the dispute. Their submission claims that 'there are no restrictions under the existing agreements which prohibit the carriers from abolishing the position' of oiler on their diesel tugs. It proceeds upon the theory that since the applicable collective bargaining agreements do not on their face prohibit or restrict the abolition of these jobs, the carriers have the common-law right to abolish these positions in the exercise of their managerial prerogatives.

 The submission attempts to sustain the burden of showing that the oilers' positions are in fact unnecessary and recites facts which it is claimed sustain that burden.

 It is apparent from reading the submission that it is the railroads' position that the question of whether or not the positions are unnecessary is one for determination by the Railway Adjustment Board, as is the question of whether or not they have the right to abolish these positions as a matter of managerial prerogative under the terms of the collective bargaining agreement, and under the provisions of the Railway Labor Act. These are some of the very questions which the railroads seek to have this court determine upon their application for a preliminary injunction.

 The submission, moreover, cites many cases in which the Adjustment Boards have considered and determined similar or analogous claims as part of normal procedure under the Railway Labor Act.

 On June 15, the day before these motions were returnable, the National Mediation Board requested representatives of the parties to meet with it 'for discussion and investigation of the issues involved in this dispute'. I understand that some such discussions have been had but that they have been suspended pending the determination of the motions by this court.

 Plaintiffs maintain tugboats, lighters, carfloats, ferries, piers and docks in and about New York Harbor and in the Hudson and East Rivers. These marine operations are an important link in plaintiffs' transportation services both by way of interchange and otherwise. They handle through these marine facilities approximately forty-nine million tons of freight per year from which is derived an annual gross revenue of approximately one hundred eighteen million dollars. The 'float' service operated by tugs handles an average of 1,547 cars of fright daily. This freight consists in large part of food, fuel, medicines and other commodities. Disruption of this service is causing hardship to the public as well as serious harm to the plaintiffs.

 There are collective bargaining agreements now in force and effect between the various railroads and the various union defendants covering the classes of employees which the unions represent. These classes of employees include the firemen-oilers both on diesel and steam tugs, among the other marine crafts. It is unnecessary to go into the terms of the individual collective bargaining agreements since for purposes of this action it is stipulated that they are all of substantially the same pattern. These collective bargaining agreements are in the usual form and establish rates of pay, hours, rules and working conditions for the employees covered thereby.

 While the facts before me are by no means complete, such essential facts as are necessary for the disposition of these motions are for all practical purposes agreed to or admitted. Neither side has asked for a hearing on the facts. The questions for decision arise under the admittedly applicable provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.

 The railroads have made a transition from steam to diesel tugs over a number of years. On steam tugs there had always been at least two men in the engineroom, the engineer, and a fireman whose principal job was to stoke the fires. The practice of having two men in the engineroom continued as diesel tugs were substituted for the older steam tugs and the second man on the diesel was denominated as an oiler or fireman-oiler. On the diesel tugs the stoking was no longer necessary, and, indeed, the railroads claim that the oiler is for all practical purposes a supernumerary. At the present time the majority of the tugs operated by the railroads are diesel powered and the position of the second man in the engineroom filled by the oilers has been maintained on diesel tugs for many years. All diesel tugs now operated were in operation at the time of the execution of the last collective bargaining agreements between the railroads and the unions covering tugboat workers and among the crafts specifically listed in the agreements which are now in force, and have been in force for several years, are oilers and firemen on tugboats.

 Plaintiff railroads assert that the change from steam to diesel power has made the position of oiler on the diesel tugs wholly unnecessary. They claim that whereas the firemen on steam tugs perform a necessary function, the only job performed by the oilers on the diesel tugs now consists of keeping the engineroom brass and bilges clean. This is the basis claimed for the abolition of these positions.

 The railroads contend that as a management prerogative they have the right in their uncontrolled discretion to abolish unnecessary jobs in the absence of express contractual provisions to the contrary. They claim that since the collective bargaining agreements with the unions contain no express prohibition against abolition of the oilers' jobs they have the absolute right to abolish them, and that this is no concern of the union and does not give rise to a 'labor' dispute within the meaning of the Railway Labor Act. They assert that the oilers whose jobs are abolished may, and no doubt have, seniority rights which may enable them to bid in on the relatively few steam tug jobs which remain, and also are entitled to rights under the Railway Retirement Act, 45 U.S.C.A. § 228a et seq. They say that the only labor dispute which may arise out of the abolition of ...

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